1.  SAVINGS

 a. Estimated Savings. The License Fee will yield an Energy Offset to you that will be expected to result in payments that are less than the average rate charged by YOUR UTILITY for your class of service for the year ending the December 31 preceding the Start Date. We estimate that during the Agreement Term the cost of electricity purchased from YOUR UTILITY will increase at a rate greater than the escalator which we will apply to our license fees. You will save money on electricity because the Energy Offsets received as a result of your license will have effectively cost less than the dollar value of the Energy Offset that YOUR UTILITY applies to your electricity bills.  Your electric bill from YOUR UTILITY may be affected by a number of factors, including a change in your energy consumption habits which could result in the application of demand charges by YOUR UTILITY.  The estimated savings you could achieve with the Energy Offsets are relative to what you would otherwise have to pay YOUR UTILITY for the same energy use and will not necessarily translate into a lower bill each month from YOUR UTILITY. Should you have any questions on how to interpret YOUR UTILITY’s bill to determine the value of your savings after taking into account the Energy Offset, our customer service representatives will be available to help.  

b. No Guarantee of Energy Offsets. We do not warrant or guarantee that the Solar Project will produce any certain amount of electricity. Therefore, we do not guarantee the amount or value of Energy Offsets you will receive under this Agreement. Your resulting Energy Offset will vary from month-to-month depending on the Solar Project’s production but you will only be billed for your regular license fee payment.

c. No Guarantee of Savings. We do not warrant or guarantee, however, that you will save money on your utility bills from the Energy Offsets resulting from this license. It is possible that YOUR UTILITY could reduce its rates below the effective Energy Offset Price under this license. In such an event, we will give you a credit after the annual true-up to reimburse you for any charges in excess of what you would have paid if you just purchased electricity from YOUR UTILITY.  Accordingly, while we cannot guarantee savings, we do assure you that you will never pay more on an annual basis than if you were just purchasing electricity from YOUR UTILITY.

2. OWNERSHIP OF THE SOLAR PROJECT; ENVIRONMENTAL ATTRIBUTES

 a. Solar Project Ownership. You agree that Solarback owns the Solar Project for all purposes, including sole rights to any data generated from the Solar Project. The Solar Project is our personal property under the Uniform Commercial Code, as in effect in Florida.

b. Tax Credits, Incentives. You agree that we own any and all tax credits, incentives, renewable energy credits, green tags, carbon offset credits, utility rebates or any other nonpower attributes of the Solar Project (together, the “Environmental Attributes”). You agree to cooperate with us as reasonably necessary to claim any of these Environmental Attributes.

3. UNAVOIDABLE EVENTS/CHANGE IN LAW.  An “Unavoidable Event” means an event that we could not reasonably foresee or avoid and that (i) delays or prevents us from performing our obligations under this Agreement, (ii) substantially increases the cost or difficulty of performing our obligations under this Agreement, or (iii) substantially reduces our economic returns from operating the Solar Project. A “Change in Law” is a change in any applicable law, statute or regulation, or any court or other government entity’s interpretation of them, that (i) delays or prevents us from performing our obligations under this Agreement, (ii) substantially increases the cost or difficulty of performing our obligations under this Agreement, or (iii) substantially reduces our economic returns from operating the Solar Project. Solarback shall not be liable for its inability to perform its obligations during this Agreement during the period of any Unavoidable Event or if a Change in Law takes place.

4.  INDEMNIFICATION.  You agree to hold Solarback harmless from its non-performance hereunder in the case of an Unavoidable Event or Change in Law. To the extent we consent to your assignment of this Agreement to a subtenant or subsequent lessor of your premises in the Solar Project, you acknowledge that you are not authorized to make any representations about the Solar Project to any prospective assignee, and that Solarback has not made any representations to you guaranteeing any savings on your utility bill, any amount of Energy Offsets or other benefit.  You will hold us harmless and indemnify us from any damages, claims, or causes of action brought by any assignee of this Agreement with respect to any representations you make to such assignee regarding utility savings or other benefits of this Agreement.

5.  GOVERNING LAW.  This Agreement will be governed by and construed in accordance with the laws of the State of Florida, without giving effect to any Florida choice of law principles that would require application of another jurisdiction’s laws

6.  CUSTOMER INFORMATION. You warrant to us that the customer information you have provided is valid and true. You will update us promptly if any of your customer information changes. We will protect your information from unauthorized disclosure using the same standard of care we use to protect our own business information.

7.  UTILITY USAGE DATA; PRIVACY POLICY. You authorize us to obtain information regarding your historical energy usage from YOUR UTILITY from time-to-time as we may deem necessary in our judgment. This authorization is valid for the Agreement Term and until January 31 following termination of the Agreement.  We may obtain information about your historical energy usage to set the size of your Customer Allocation and to ensure your participation in the Solar Project complies with applicable laws. Your information will be used by our employees and may be given to our affiliates, contractors, lawyers, accountants, banks, financiers or other advisers working with us in connection with the Solar Project.

8. CREDIT REPORT. You authorize us to periodically access your credit report and credit score, and to disclose such information to any of our affiliates or subsidiaries, and to any purchaser of the solar project or of all or substantially all of Solarback’s property and assets, or to any lenders or finance partners.

9.  LIMITED POWER OF ATTORNEY. By executing this Agreement you hereby appoint Solarback and its representatives as your attorney-in-fact for purposes of signing consents, contracts and other documents on your behalf solely as may be required to participate in any interconnection or net metering agreements with YOUR UTILITY. Interconnection agreements permit the Solar Project to connect to YOUR UTILITY GRID; net metering agreements allow YOUR UTILITY to track how much electricity the Solar Project (including the portion leased to you) sends to the grid and how much net energy you take from the grid. This limited power of attorney will facilitate your participation in those types of agreements for purposes of achieving a net savings on YOUR UTILITY’s electric bill.  In the event that YOUR UTILITY  or  any  other  applicable  regulatory  or government body is not satisfied with the authority granted to Solarback by this limited power of attorney, you agree to cooperate in executing any additional consents, instruments or other documents related to the foregoing as may be required by YOUR UTILITY or by any other regulatory entity with jurisdiction over the foregoing.

10. SECURITIES LAW.  Solarback makes no representations or warranties concerning the applicability of any state or federal securities laws with respect to this Agreement, your Customer Allocation or the Energy Offset applied to your utility account.  Neither this Agreement nor the license granted to you hereby or the Customer Allocation has been registered under the Securities Act of 1933, as amended, or similar law. You agree that you are entering into this Agreement solely for personal/business use of the Customer Allocation and resulting Energy Offset.

11.  AVAILABILITY OF ENERGY OFFSETS

a. Project Not Yet Constructed. The Solar Project may not yet be constructed as of the date of this Agreement. You will not be able to receive any Energy Offset until the Solar Project has been fully constructed, YOUR UTILITY has given permission for the Solar Project to begin to operate, and the Solar Project commences electric production resulting in the Energy Offset. Energy Offsets are applied retroactively on a 30-day basis.

b. Project Fully Subscribed. As of the Effective Date, the Solar Project may be fully subscribed. In such event, you will be added to our customer waiting list. When additional Customer Allocations become available, we will notify you and will not bill you a license fee until such time.

12.  NOTICE. Any notice to be provided under this Agreement shall be deemed given when sent by certified U.S. email with signature confirmation or when delivered by recognized courier to the Customer’s address set forth on the first page of this Agreement.  Notices to Solarback shall be sent to:

980 N. Federal Highway, Suite 110

Boca Raton, Florida 33432

Attention: Robert Stillman

Email: Info@solarbackusa.com

13.  MANDATORY ARBITRATION. Any disputes between the parties arising under or relating to this Agreement shall be submitted to JAMS, or its successor, for final and binding arbitration. Either party may initiate arbitration by filing a statement of claim with JAMS not earlier than 30 days after giving notice of such party’s claim to the other party, and attempting to work out a mutual agreement or resolution to such claim prior to arbitration. If no resolution has been achieved during the 30 days following the claiming party’s notice of its claim to the other party, the claiming party may initiate arbitration hereunder. The dispute shall be determined by arbitration before a single arbitrator, and the parties shall share equally in all costs of the arbitration, except their own attorney’s fees and costs. The parties will cooperate with JAMS and with one another in selecting an arbitrator from the JAMS panel of neutrals who shall be a retired judge.  The parties agree that the venue for the arbitration proceedings shall lie in Palm Beach County, Florida or, alternatively, the proceedings may be conducted via videoconferencing. The arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction.

This clause shall not preclude the parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until fifteen (15) days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling. Notwithstanding the foregoing, nothing in this Agreement shall be construed as limiting in any way the right of a Party to immediately seek temporary and/or preliminary injunctive relief from a court of competent jurisdiction with respect to any actual or threatened breach of this Agreement.