Community Solar Terms & Conditions
Community Solar Net Metering Credit Allocation Subscription Agreement
POWER GENERATION TERMS & CONDITIONS
This COMMUNITY SOLAR NET METERING CREDIT ALLOCATION AGREEMENT (together with all exhibits, schedules, and attachments referenced in its text as if set forth herein in full, this “Agreement”) is made and entered into on the “Effective Date” listed in the executive summary above (“Executive Summary”) by and between the parties listed.
Definitions. Throughout this Agreement, the words “we”, “us” and “our” mean SUNation Energy, LLC, or if SUNation Energy, LLC transfers or assigns this Agreement then the Project Owner as described further below to which the Agreement is transferred or assigned. The words “you” and “your” refer to the person(s) identified above and whose signature appears on this Agreement under the word “Customer”. Any terms used herein, but not otherwise defined, shall have the meanings set forth in the Executive Summary.
You and we are sometimes referred to in this Agreement, individually, as a “Party” and, together, as the “Parties”. Other capitalized words used in this Agreement have the meanings given to them in bold font contained in quotation marks, including in the “General Terms and Conditions” attached as Schedule B, which is a part of this Agreement.
Description of Agreement. This Agreement is a legally binding contract. It governs the terms and conditions under which:
(a) we will arrange for the right to transfer and assign to you a portion of the Net Metering Credit calculated by the Utility in connection with the electricity generated and delivered to the Utility by the Community Solar Project identified on The Executive Summary (the “Community Solar Project”); and
(b) you will receive and purchase from us and we will arrange for the allocation to your Utility Account of your portion of such Net Metering Credit.
Purchase and Sale of Net Metering Credit. You agree to purchase the Net Metering Credit at the rates described in the Executive Summary (the “Applicable Rate”), which shows the percentage discount which will be applied to the Utility’s prevailing Net Metering Tariff per kWh as described in this Agreement and the Executive Summary. The Net Metering Credit will be calculated and allocated to your Utility Account in kwh. Ownership, title and risk of loss of any Net Metering Credit will transfer to you upon the Utility’s calculation of the Net Metering Credit under the Project Owner’s utility account in accordance with applicable law and the tariffs of the Utility via the “Appendix B – PSEG Allocation Request Form” form filed with the Utility by the Project Owner or by us.
Monthly Charges and Billing. Each month, you will pay us via Automated Clearing House (“ACH”), in accordance with the terms set forth in Schedule D, the Applicable Rate for each kilowatt hour of Net Metering Credit allocated to your Utility Account regardless of your usage of electricity, and the amount due to your Utility. Any unused Net Metering Credits in a given billing period will be treated by the Utility in accordance with your electric utility’s Net Metering Tariff document. You will not be permitted to receive any payments in cash from us for any portion of the Net Metering Credit allocated to your Utility Account, including any portion that may remain unused or which has not been applied to actual amounts due by you to the Utility under your Utility Account bills at any time.
Monthly Statement and Payment. We will provide to you a monthly statement showing a summary of the charges that you incurred from us including (a) the amount and value of the Net Metering Credit allocated to your Utility Account during the prior Billing Month, (b) the Applicable Rate, (c) sales taxes or other charges imposed by any governmental authority on our sale to you of the Net Metering Credit and the other services provided to you under this Agreement or on the Project Owner and passed through to us under our agreement with the Project Owner and (d) the total amount due from you to us (the “Monthly Statement”). You agree to pay us the total amount due shown on each Monthly Statement by Automated Clearing House (“ACH”) payment, in accordance with the terms set forth in the Executive Summary and the General Terms and Conditions. You will continue to receive monthly bills from your Utility and your competitive electricity supplier, if any. The amount of Net Metering Credit applied to your Utility Account will be shown on your bills from the Utility. You may still need to make payments to the Utility for its provision of electricity and delivery services to you and for amounts you owe to your competitive electricity supplier, if any, not covered by the Net Metering Credit allocated to your account.
Project Not Yet Constructed. You understand that, as of the Effective Date, the Community Solar Project may or may not have been built or yet begun to operate or generate electricity from which the Net Metering Credit can be calculated by the Utility. We will not be able to allocate and sell to you and you will not be able to receive any Net Metering Credit from the Community Solar Project until the date it has been fully constructed, has received permission from the Utility to begin to operate, and the Utility has begun to measure, calculate, and allocate the Net Metering Credit according to law and the Utility’s procedures. This date is the “Net Metering Start Date.” You understand that our obligations under this Agreement are contingent upon achievement of the Net Metering Start Date within twelve (12) months of the Effective Date, and that if the Net Metering Start Date is not achieved, this Agreement will be terminated as described below.
Term. The term (“Term”) of this Agreement will begin on the Effective Date and will renew on the one (1) year anniversary of the Net Metering Start Date (“Renewal Date”) unless earlier terminated as specifically provided for in this Agreement.
Renewal. This Agreement may be terminated at the expiration of the Term by either party giving written notice, by registered mail, return receipt (effective on noted delivery date), not less than sixty (60) days prior to the expiration of the Term. If either party does not give notice, this Agreement shall remain in full force and effect upon its then current terms for subsequent one (1) year periods subject to these termination provisions. Each annual renewal will be accompanied by a percentage increase in the Applicable Rate defined in the Executive Summary. Your obligation to pay any and all charges and assessments, which shall have accrued, shall survive any termination of this Agreement.
Your Obligations to the Utility, any Competitive Supplier and to Us. You must continue to maintain the Utility Account during the Term of this Agreement. You must take electric service at your residence under your Utility Account in your own name. If you purchase retail electric supply from a competitive electric supplier and you wish to have the Utility apply the Net Metering Credit to amounts due from you to your competitive supplier, you must cause your Utility and competitive supplier to enroll you in a combined billing service under which amounts due to your competitive supplier for electricity are billed to you on your Utility’s invoice to your for distribution services. If you do not enroll in combined billing, the Utility will not apply the Net Metering Credit towards amounts due by you to your competitive supplier. You will continue to be obligated to pay all amounts due to the Utility under your Utility Account as well as any amounts due to your competitive supplier, whether under a combined bill or separate bills.
Returned Payments. A payment that is dishonored or returned for any reason, including without limitation insufficient funds in your account, will incur a fee (“Returned Payment Fee”) equal to the lower of (a) $20 and (b) the maximum amount permitted by applicable law. The Returned Payment Fee is an administrative charge to compensate us for costs we incur as a result of returned payments. It is not an interest or finance charge.
No Ownership of Community Solar Project. You understand that you will not own any part of or any interest in the Community Solar Project, whether directly or indirectly. The Community Solar Project will be developed, constructed, owned and operated by a third party (a “Project Owner”). We may enter into an agreement with a Project Owner under which we will have the right to sell the Net Metering Credit to you and allocate the Net Metering Credit to your Utility Account as well as other Utility Account holders who are located in the same NYISO load zone as the Community Solar Project. We may also assign this Agreement, in whole or in part, to a Project Owner.
Ownership of Incentives and Environmental Attributes. You acknowledge that we will not transfer to you, and the Project Owner will continue to own and have the exclusive right to, any credits, rebates, subsidies, payments or other incentives that relate to the generation of electricity using the power of the sun and the technology incorporated into the Community Solar Project and the environmental benefits of using the Community Solar Project (other than that portion of the Net Metering Credit calculated for by the Utility and allocated to your Utility Account), whether acknowledged or provided by any program available from the local Utility, electric company or any other regulated entity, the manufacturer of any part of the Community Solar Project, the New York Department of Public Service, the New York State Reasearch and Development Authority, or any other governmental authority of the State of New York or the federal government of the United States of America, and any successor to any of the previous entities (collectively, “Incentives”). You agree that you will take those actions reasonably requested by us that must be undertaken as required to qualify for, and enable us (including the Project Owner) to receive any Incentives. For purposes of this Agreement, “Environmental Attributes” include carbon trading credits, greenhouse gas offsets or credits, renewable energy credits or certificates, emissions reduction credits, emissions allowances, green tags, tradeable renewable credits and any other similar products. You agree that you will execute any documents we decide are necessary or expedient to accomplish the sale, transfer or assignment by us or the Project Owner (or to us or the Project Owner) of any Environmental Attributes or Incentives.
Estimated Electricity For Net Metering Credit. The Executive Summary also shows the amount of electricity, measured in kilowatt hours, we estimate will be generated by the Community Solar Project in each year during the Term for which the Utility will calculate Net Metering Credit for allocation to your Utility Account. Due to a number of reasons, including but not limited to day-to-day, seasonal and other changes and variations in weather, the actual production of electricity will vary, and we cannot and do not guarantee the Community Solar Project will in fact produce electricity in such amounts. This amount is an estimate only, and we also cannot and do not predict the value of the Net Metering Credit that the Utility will calculate and allocate to your Utility Account.
Value of Net Metering Credit. The value of the Net Metering Credit allocated and applied to your Utility Account will be calculated based on the Net Metering Tariff identified on the Executive Summary in effect from time to time during the term of this Agreement. The Utility will update and change the Net Metering Tariff as required or permitted by law during the term of this Agreement. The value of the Net Metering Credit per kilowatt hour of production from the Community Solar Project will also change and may be different from the cost per kilowatt hour of electricity and electric service you receive at your residence. Whether you purchase electricity from a competitive electricity supplier or receive Basic Service or Default Service electric supply from your Utility in addition to distribution services, the value per kilowatt-hour of the Net Metering Credit calculated under the Project Tariff may be higher or lower than the total cost per kilowatt hour of the electricity and electric services you receive at your residence.
Limited Use of Net Metering Credit. You may not be able to offset the entirety of the amounts due by you to the Utility under your bills sent to you by the Utility. You may be allocated Net Metering Credit which is not applied as partial payment or payment in full of amounts due by you to the Utility under your Utility Account. You may have no opportunity to increase or decrease your portion of the Net Metering Credit. You may be subjected to a minimum bill charge and other charges imposed by your Utility if the Utility imposes such charges in connection with a change in its tariffs or applicable law. You may not be permitted to apply the amount of the Net Metering Credit to the portion of your bills due to the Utility for such minimum amount.
Energy Requirements. You understand that this Agreement is not for delivery of any electricity to your residence. You acknowledge that you will need to maintain an account with your local electric distribution company, Utility or other electricity provider and remain connected to the local distribution network or electricity grid for the provision or delivery of electricity you need at your residence. You will be solely responsible for obtaining and paying for electricity and distribution services from your Utility or any other source or supplier.
Information; Authorizations; Power of Attorney. You hereby authorize us, including the Project Owner, to deliver to the Utility and keep on record with the Utility such documentation and information as may be required by the Utility for us to perform our obligations under this Agreement. You authorize us to provide to the Utility such information about your Utility Account and such other information from the Executive Summary as may be necessary for us to cause the Utility and the Project Owner to allocate, transfer and assign to you and apply to amounts due by you under your Utility Account your portion of the Net Metering Credit from the Community Solar Project. We will use such information to administer and maintain, in some cases directly and in others on the Project Owner’s behalf, a list of and instructions to the Utility for allocating all participants who will receive a percentage share of the Net Metering Credit calculated by the Utility for the Community Solar Project. This list and related instructions is called the Utility’s “Appendix B – Allocation Request Form.” You hereby grant to us a power of attorney coupled with an interest and appoint us as your attorney in fact for all such purposes. You hereby confirm that all of the information provided on the Executive Summary is true, correct and complete.
Access to Your Utility Account and Utility Data. You agree to promptly provide us with copies of and/or access to the invoices you receive from the Utility and other information associated with your Utility Account, including such data as may be made available by you or the Utility from the meter or meters installed by the Utility at your residence, for the purpose of executing this Agreement and verifying the delivery of Net Metering Credits to your Utility Account as expected by your electric Utility.
Taxes. You will be responsible for and will pay any and all sales taxes and other taxes and charges imposed upon the sale of Net Metering Credits from us to you under this Agreement. The Project Owner will be responsible for all income, gross receipts, ad valorem (in proportion to the estimated value of the goods or transaction concerned), personal property or real property or other taxes and franchise fees assessed against the Community Solar Project.
Your Options if You Move. If you decide to sell and/or move out of your home and moving will change your Utility Account, you may have the opportunity to have Net Metering Credit allocated to the utility account at your new residence where possible. If you want to transfer this Agreement to your new residence, it must be located within the same Utility’s service territory and within the same NYISO load zone as the one in which the Community Solar Project is located. In that situation, you must change the Utility Account to which your Net Metering Credit will be allocated. You must provide written notice to us of your new utility account information and such new utility account will then become the Utility Account to which we will direct the allocation of the Net Metering Credit. If you do not allocate your Net Metering Credit to your new residence, you will be subject to the terms of Early Termination, as described in the paragraph below titled “Early Termination; Time Period Before Cancellation Become Effective”.
Termination of this Agreement. You may cancel and terminate this Agreement by providing written notice to us a minimum of sixty (60) calendar days notice prior to the Renewal Date in the year termination is requested. Termination of this Agreement is subject to the terms and conditions detailed in the following paragraph titled “Early Termination; Time Period Before Cancellation Becomes Effective”. We may cancel and terminate this Agreement before the end of the Term in the event that the Net Metering Start Date does not occur within twelve months of the Effective Date, or as provided in the section “Unforeseen Problems; Our Optional Termination”.
Unforeseen Problems; Our Optional Termination. If there are unforeseen problems with performing our obligations under this Agreement due to the actions or omissions of the Project Owner,actions taken by or on behalf of you or other persons, a Force Majeure Event or a Change in Law (as defined in the General Terms and Conditions), or due to the inaccuracy of any information that you provided and on which we relied, we reserve the right to terminate this Agreement by giving you ten (10) days prior written notice. If we terminate this Agreement before the Net Metering Start Date we will have no further obligations or liabilities to you.
Events of Default; Remedies. Your Event of Default under this Agreement, including a Payment Default, will allow us to choose certain remedies including terminating this Agreement, removing your Utility Account from the Allocation Request Form for this Community Solar Project plus additional cancellation fees including reasonable attorney fees. In addition to the foregoing, all other rights and remedies are expressly reserved, none of which are waived.
Our Representations and Warranties to you. We hereby represent and warrant to you that (a) SUNation Energy, Inc is a corporation duly organized, validly existing under the laws of the State of New York and registered to conduct business in The State of New York; (b) our execution, delivery and performance of this Agreement have been duly authorized by all necessary company action; and (c) this Agreement is our valid obligation and it is enforceable against us in accordance with its terms (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to creditors’ rights generally).
Your Representations and Warranties to us. You hereby represent and warrant to us that: (a) you have read and you understand the terms of this Agreement including all exhibits, schedules, and attachments, and have had the opportunity to ask us questions and to seek advice of an attorney if so desired; (b) you are duly authorized to execute, deliver and perform this Agreement and that such execution, performance and delivery will not violate any law; (c) this Agreement is your valid obligation and it is enforceable against you in accordance with its terms (except as may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws now or hereafter in effect relating to creditors’ rights generally); (d) your name is associated with the Utility Account and you have the full right, power and authority to enter into this Agreement; (e) your execution, delivery and performance of this Agreement will not conflict with or result in a default under any of the terms or conditions of any agreement or obligation to which you are a party or by which you or your Property may be bound; and (f) all information that you have provided to us, and other facts, estimates and assumptions are accurate, true and complete in all respects.
Cancellation Rights. In addition to your other rights to cancel this Agreement, You, the Customer, may cancel this transaction at any time prior to midnight of the third business day after the Effective Date. See the attached Notice of Cancellation form for an explanation of this right. To exercise your right of cancellation, you may deliver a completed notice of cancellation using the form attached in duplicate to this Agreement as Schedule C.
GENERAL TERMS & CONDITIONS
Definitions and Interpretation. Unless otherwise required by the context in which any term appears: (a) capitalized terms used in this Agreement have the meanings specified in this Agreement; (b) the singular includes the plural and vice versa; and (c) the words “include,” “includes” and “including” mean include, includes and including “for example and without limitation.” The captions or headings in this Agreement are strictly for convenience and are not to be considered in interpreting this Agreement.
Change in Law. If any applicable law or regulation is enacted, modified or repealed after the Effective Date that establishes requirements affecting the performance of our obligations under this Agreement (a “Change in Law”) and such Change in Law has a material adverse effect on our cost of performing such obligations, we will have the right to terminate this Agreement.
Events of Default. The occurrence of any one or more of the following events with respect to one of the Parties (the “Defaulting Party”) will be an event of default (“Event of Default”) under this Agreement: (a) failure to pay any amount due and payable under this Agreement (“Payment Default”); (b) failure to substantially perform any other material obligation under this Agreement; (c) a representation or warranty of such Defaulting Party proves at any time to have been incorrect in any material respect when made and is material to the transactions contemplated hereby; or (d) such Party (i) generally fails to pay, or admits in writing its inability to pay, its debts as they come due, (ii) voluntarily ceases to conduct its business in the ordinary course, (iii) commences any voluntary proceeding under any bankruptcy or similar law, (iv) takes any action to effectuate or authorize any of the forgoing; (v) has an involuntary proceeding commenced against it under any bankruptcy or similar law, which involuntary proceeding has not been dismissed within 30 days of such commencement, (vi) becomes subject to a judgment or similar action against a substantial portion of its properties, which action has not been released within 30 days after being issued or levied (vii) acquiesces in the appointment of a receiver or similar person for itself or a significant portion of its property.
Remedies. On the occurrence of a Payment Default, the Party that is not the Defaulting Party (the “Non-Defaulting Party”) may suspend performance of its obligations under this Agreement if such Payment Default is not cured by the Defaulting Party within 10 days following receipt of written notice of such Payment Default. Further, the Non-Defaulting Party may pursue any remedy under this Agreement, at law or in equity, including an action for damages and termination of this Agreement immediately upon written notice to the Defaulting Party following expiration of the foregoing 10 day period. On the occurrence of an Event of Default other than a Payment Default, the Non-Defaulting Party may pursue any remedy under this Agreement, at law or in equity, including an action for damages and termination of this Agreement, following the Defaulting Party’s failure to cure the Event of Default within 30 days following receipt of written notice from the Non-Defaulting Party demanding such cure; provided, that such 30 day cure period will be extended if and to the extent reasonably necessary to cure the Event of Default, if (a) the Defaulting Party initiates such cure with the 30 day period and continues such cure to completion and (b) there is no material adverse effect on the Non-Defaulting Party resulting from the failure to cure the Event of Default. Nothing herein will limit either Party’s right to collect damages upon the occurrence of a breach or a default by the other Party that does not become an Event of Default.
Force Majeure Event. Except as otherwise expressly provided to the contrary in this Agreement and except for payment obligations, if either Party is rendered wholly or partly unable to timely perform its obligations under this Agreement (other than a payment obligation) because of events which are beyond the affected Party’s reasonable control and do not result from such Party’s negligence (a “Force Majeure Event”), that Party will be excused from performing those obligations affected by the Force Majeure Event (but only to the extent so affected), provided that: (a) the affected Party gives the other Party prompt written notice fully describing the particulars of the occurrence; (b) the suspension of performance is of no greater scope and of no longer duration than is required by the Force Majeure Event; and (c) the affected Party uses all reasonable efforts to mitigate or remedy its inability to perform as soon as reasonably possible.
No Warranty. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, NO WARRANTY OR REMEDY, WHETHER STATUTORY, WRITTEN, ORAL, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, OR WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE SHALL APPLY, ALL OF WHICH ARE DISCLAIMED. THE REMEDIES SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES FOR ANY CLAIM OR LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
Further Assurances. Each of the Parties hereto agree to provide such information, execute and deliver any instruments and documents and to take such other actions as may be necessary or reasonably requested by the other Party that are not inconsistent with the provisions of this Agreement and that do not involve the assumptions of obligations other than those provided for in this Agreement, in order to give full effect to this Agreement and to carry out the intent of this Agreement, including arranging for the consent of the holders of any mortgages on your Property.
Assignment of Agreement to Project Owner. We may transfer and assign this agreement to the Project Owner at any time, in whole or in part, together with some or all of our rights and obligations under this Agreement. If we choose to make such a transfer and assignment, we will inform you in writing and include the identity and contact information of the Project Owner. If we continue to coordinate certain aspects of this Agreement on behalf of the Project Owner, we will inform you of any changes in our contact information. The Project Owner will assume in full all of our rights and obligations arising under this Agreement from and after the date of our transfer and assignment. Upon our delivery to you of written notice of such a transfer and assignment, you will have released us of all of our obligations and liabilities under this Agreement from and after the date of such notice. After we send you written notice of such a transfer and assignment, SUNation Energy, LLC will no longer have any obligations to you under this Agreement. You may not assign this Agreement without our prior written consent. In addition, the Project Owner may, without your consent, (a) assign, mortgage, pledge or collaterally assign its interests in this Agreement to any lender or similar person providing financing for its business or affiliate’s business, (b) assign this Agreement to its affiliate, or (c) assign this Agreement to any party succeeding all or substantially all of its assets. This Agreement is binding on and inures to the benefit of the successors and permitted assignees and may continue in full force and effect as an obligation of your estate upon your death or disability.
Amendments and Waivers. Any waiver or amendment of the provisions of this Agreement must be in writing and signed by the Party against whom the waiver or Amendment is being enforced.Your or our failure to enforce any term of this Agreement will not be deemed to be a waiver. Your or our exercise of any right or remedy under this Agreement will not constitute a waiver of any other right or remedy provide in this Agreement or by applicable law. Any waiver of a default or other matter under this Agreement will not, unless otherwise expressly stated in writing, waive any subsequent default or other matter.
Severable Provisions. If any provision of this Agreement is determined to be illegal or unenforceable, such determination will not affect any other provision of this Agreement and all other provisions of this Agreement will remain in full force and effect.
Entire Agreement. This Agreement embodies the entire agreement and understanding of the Parties and supersedes all prior or contemporaneous agreements and understandings of the Parties, verbal or written, relating to the subject matter hereof.
Not a Utility, Electricity Supplier or Broker. You acknowledge that we are not, and that our services to you and sale of Net Metering Credit under this Agreement will not cause us to become, an electric utility, a generation company, an aggregator or supplier, an energy marketer or energy broker, as those terms are defined in under New York law. If we are reasonably likely to become subject to regulation, then you agree to cooperate and assist us and restructure our relationship under this Agreement to preserve the parties relative economic interests and ensuring that we do not become subject to any such regulation. If we are unable to agree upon the terms of such restructuring, we will have the right to terminate this Agreement without liability.
Governing Law. This Agreement shall be governed by, and interpreted and construed in accordance with, the laws of the State of New York, excluding any choice of law rules that might direct the application of the laws of a different jurisdiction, irrespective of the places of execution or of the order in which signatures of the Parties are affixed or of the place of performance.
Binding Arbitration. To the extent permitted by applicable law, the Parties hereby agree all disputes or claims between them, including any arising under this Agreement will be settled at the election of either party without the consent of the other Party by binding arbitration administered by the American Arbitration Association (the “AAA”) regardless of the legal or equitable basis for such claim or the type of relief being sought. The seat or place of arbitration shall be in Suffolk County, State of New York. The arbitration shall be conducted and the award shall be rendered in the English language. Except as may be required by law, neither a party nor the arbirator(s) may disclose the existence, content or results of any arbitration without the prior written consent of both parties, unless to protect or pursue a legal right. The arbitrator(s) will have no authority to award punitive damages, consequential damages, or liquidated damages. Neither you nor we agree to any arbitration on a class or representative basis and no arbitrator will have the authority to proceed on such a basis for any claim arising under this Agreement. IN THE ABSENCE OF THE AGREEMENT TO ARBITRATE IN THIS SECTION, EXCEPT IN CONNECTION WITH ANY CLASS ACTION, YOU AND WE MAY HAVE HAD A RIGHT TO BRING A DISPUTE OR CLAIM UNDER THIS AGREEMENT IN COURT OR BEFORE A JUDGE OR JURY. CERTAIN RIGHTS THAT YOU MAY HAVE HAD IN COURT MAY BE MORE LIMITED. EXCEPT AS PROVIDED IN THIS SECTION AND IN THE AAA RULES AND REGULATIONS, THE PARTIES HEREBY WAIVE SUCH RIGHTS. You may obtain information about initiating a claim with the AAA and copies of the current rules by contacting the AAA at 335 Madison Avenue, New York NY 10017-4605, www.adr.org, or 800-778-7879.
Limitations of Liability. NEITHER WE NOR OUR MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, REPRESENTATIVES, SUBCONTRACTORS, SUPPLIERS, SUBSIDIARIES, AFFILIATES, SUCCESSORS, OR ASSIGNS WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, LIQUIDATED, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY NATURE ARISING OUT OF THEIR PERFORMANCE OR NON-PERFORMANCE HEREUNDER. OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT ARISING OUT OF OR IN CONNECTION WITH THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT WILL NOT EXCEED THE AMOUNT OF THE MOST RECENT MONTHLY PAYMENT MADE YOU UNDER THIS AGREEMENT AS OF THE DATE THAT THE EVENTS THAT FIRST GAVE RISE TO SUCH LIABILITY OCCURRED OR THE PREVOIUS MONTHS’ PAYMENTS PRECEDING THE DATE THAT THE EVENTS THAT FIRST GAVE RISE TO SUCH LIABILITY OCCURRED. THE PROVISIONS OF THIS SECTION WILL APPLY WHETHER SUCH LIABILITY ARISES IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBLITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FOTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Consent to Receive Electronic Communications. SUNation Energy LLC delivers communications to you electronically. We may amend this policy at any time by posting a revised version on our website, www.sunation.com or other secure Customer portal. The revised version will be effective at the time we post it. In addition, if the revised version includes a substantial change, we will endeavor to provide you with thirty (30) days prior notice by posting notice of the change on our website. You agree and consent to receive electronically all communications, agreements, documents, billing statements, notices and disclosures (collectively, “Communications”) that we provide in connection with your Community Solar Net Metering Credit Allocation Agreement or your Community Solar Project. We will provide these Communications to you by emailing them to you at the primary email address provided by you in your Community Solar Net Metering Credit Allocation Agreement and updating the secure Customer portal. It is your responsibility to keep your primary email address up to date so that we can communicate with you electronically. You understand and agree that if we send you an electronic Communication but you do not receive it because your primary email address on file is incorrect, filtered by your email system as junk or spam, out of date, blocked by your service provider, or you are otherwise unable to receive electronic Communications, we will be deemed to have provided the Communication to you. Please note that if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add SUNation Energy LLC to your email address book so that you will be able to receive the Communications we send to you.
Authorization For Automatic ACH Direct-Debit Payments. This attachment describes how SUNation Energy, or if SUNation Energy transfers or assigns this Agreement then the Project Owner to which the Agreement is transferred or assigned, will provide and operate Automatic ACH Direct-Debit payment (“Automatic Debit”) for your participation in this Community Solar Project. By using Automatic Debit, your monthly payment under the Community Solar Net Metering Credit Allocation Agreement will be debited automatically on the payment due date from an account you designate. Please complete all the required fields on this form. Information provided on this Automatic Debit Authorization form will be used by SUNation Energy and/or the Project Owner to whom this Agreement is assigned and your financial institution to complete the enrollment process.
I (we) hereby authorize and request SUNation Energy or the Project Owner to whom the COMMUNITY SOLAR NET METERING CREDIT ALLOCATION AGREEMENT between me (us) and SUNation Energy (the “Agreement”) is assigned to initiate Automatic Debit or effect a charge by any other commercially accepted practice from my (our) checking account or savings account indicated above at the financial institution named above. I (we) authorize and request said financial institution to honor the Automatic Debit initiated by SUNation Energy or the Project Owner to whom the Agreement is assigned and to debit such account. This authorization is for monthly Automatic Debits in an amount equal to the monthly payment due under the Agreement. If my (our) payment is returned unpaid, I (we) authorize SUNation Energy or the Project Owner to whom the Agreement is assigned to make a one-time electronic fund transfer from my (our) account to collect a fee of $20. I (we) acknowledge that the origination of Automatic Debit transactions to my (our) account, must comply with the provisions of U.S. law and the rules and operating guidelines of NACHA – The Electronic Payments Association (formerly known as the National Automated Clearing House Association). This authorization is to remain in effect until either: (1) all payments required by the Agreement, except final payment, have been made (I (we) will receive a statement for final payment) or (2) SUNation Energy or the Project Owner to whom the Agreement is assigned has received written notification from me (or either of us) of the termination of this authorization. SUNation Energy reserves the right to terminate Automatic Debit at any time with written notice to me (us).
Important Automatic Debit Disclosure Information
Your Initial Resolution Notice: In case of errors, questions about your electronic transfer or if you think your statement or receipt is wrong or if you need more information about a transfer listed on the statement or receipt call us at 631-676-1790 or write to us at the address below immediately. We must hear from you no later than 60 days after we sent the FIRST statement on which the problem or error appeared. If you tell us orally, we may require that you send us your complaint or question in writing within 10 business days. We will determine whether an error occurred within 10 calendar days after we hear from you and will correct any error promptly. If we need more time, however, we may take up to 45 days to investigate your complaint or question. We may credit your account within 10 calendar days for the amount you think is in error, so that you will have the use of the money during the time it takes us to complete our investigation. If we ask you to put your complaint or question in writing and we do not receive it within 10 business days, we may not credit your account. For errors involving new accounts, we may take up to 90 days to investigate your complaint or question. For new accounts, we may take up to 20 business days to credit your account for the amount you think is in error. We will tell you the results within 3 business days after completing our investigation. If we decide that there was no error, we will send you a written explanation. You may ask for copies of the documents that we used in our investigation.
In the case of Unauthorized Transfers or to Terminate Automatic Debit Payments: If you believe that someone has transferred or may transfer money from your account without your permission, please contact us at 631-676-1790 or write:
SUNation Energy – Community Solar Billing
171 Remington Blvd
Ronkonkoma, NY 11779
Confidentiality: We will only disclose information to third parties about your account or the transfers you make: 1) where it is necessary for completing transfers; 2) in order to verify the existence and condition of your account for a third party, such a credit bureau or merchant; 3) in order to comply with government agency or court orders; or 4) if you give us written permission.