1. GENERAL PROJECT INFORMATION.
- 1.1 1Customer’s Address: The Customer’s Address shall be the address as provided to MIXSHOP at the time of ordering.
- 1.2 1System installation address (the “Property”): Unless otherwise specified the Property shall be the Customer’s Address.
- 1.3 Authorized Persons. Only the CEO of MIXSHOP Inc. with the person who signs this Agreement on a Party’s behalf, are authorized to modify any provision of this Agreement
2. ITEMS PURCHASED. MIXSHOP agrees to sell, and Customer agrees to buy, the products and services as specified in the purchase order (the ""Goods"") in accordance with the terms and conditions of this Agreement.
3. PAYMENT AND AGREEMENT PRICE. Payment shall be made to MIXSHOP INC, in the amount of as stated at Checkout (the “Agreement Price”) upon executing this Agreement.
In addition to any other right or remedy provided by law, if Customer fails to pay for the Goods when due, MIXSHOP has the option to treat such failure to pay as a material breach of this Agreement, and may cancel this Agreement and/or seek legal remedies as described below under ""Remedies on Default.""
3.1 EXCLUSIONS. The PV System and Agreement Price exclude the following items:
- 3.1.1 Changes to electrical service. Unless specifically noted, MIXSHOP's scope of work anticipates no improvements or engineering of Customer’s roof and no change to Customer’s existing electrical service panel(s) Any cost incurred for changing point of service, main switch, or electric meters; roof improvements; or other extra work is the responsibility of the Customer.
- 3.1.2 Costs imposed by Customer’s utility, authority having jurisdiction and government inspectors. Utility providers sometimes impose additional costs and requirements, including without limitation, charges for new electricity meters, switchgear, and transformers. Customer is solely responsible for paying such costs. These requirements and costs are outside the scope of MIXSHOP’s System and are not included in the Agreement Price. Customer shall pay these costs as directed by its utility. Customer acknowledges the System will require inspection by governmental officials, who may determine that pre-existing conditions unrelated to the System require correction and/or modification before the System is approved. These utility and governmental requirements are outside the scope of the System, are not included in the Agreement Price, and shall not excuse Customer from its obligations to provide timely payment of the Agreement Price in this Agreement. Customer shall promptly complete at its own expense all work outside the scope of MIXSHOP’s System that is required by governmental inspectors and applicable utility providers. Plan check, permit, inspection and other fees imposed by the authority having jurisdiction are not included in the Agreement Price.
- 3.1.3 Items not included. Wire, conduit, fittings, breakers, AC/DC Disconnects, junction boxes and a sub- panel and electrical balance of systems. Metal and flat roofs may require additional materials. Ground mounts will require schedule 40 steel pipe, fittings, concrete, miscellaneous materials and may require cross bracing. Items not included are the responsibility of the Customer.
4. GOVERNMENT AND UTILITY INCENTIVES. The System may qualify for financial incentives provided by Customer’s utility and programs offered by Customer’s local government, the Customer’s State/Province (the “State”), or the federal government, such as rebates and tax credits. The availability and amount of such financial incentives are constantly changing and often depend on Customer’s specific characteristics and tax situation. MIXSHOP does not provide any guarantee regarding the availability of, or Customer eligibility for, any such financial incentives.
- 4.1 Customer specifically acknowledges and agrees that this Agreement is not conditioned on Customer’s ability to obtain any such financial incentives. MIXSHOP encourages Customer to consult with an independent lawyer and accountant to determine the availability of such incentives.
- 4.2 Unless otherwise agreed, the Customer will be responsible for applying and securing financial incentives. Please note that some incentive programs may charge a non-refundable application fee.
- 4.3 In the event that the Customer has delegated or assigned the incentive to MIXSHOP, Customer shall promptly provide all cooperation and assistance necessary to secure applicable financial incentives.
5. PRODUCT STANDARDS. Brand new, no grey market items.
6. TITLE/RISK OF LOSS. Customer shall pay reasonable shipping costs in accordance with its shipping instructions, but the seller shall be responsible for packaging, shipping and safe delivery and shall bear all risk of damage or loss until the goods are delivered to the Customer's address.
7. DELIVERY. MIXSHOP will arrange for delivery by carrier chosen by MIXSHOP (“Carrier”). MIXSHOP is not affiliated with Carrier and will only authorize Carrier to deliver the System curbside at the address specified by Customer, above. Curbside delivery means that the shipper will safely leave the System on the sidewalk in front of Customer’s house (or, in the absence of any sidewalk, at a reasonably location at the driver’s discretion). If there is not an incline, stairs, or extremely long driveway leading to Customer’s house, the driver may wheel the pallet(s) to Customer’s door or garage, but it is at the driver's discretion. Customer shall be responsible for moving the System from the drop-off location. Customer acknowledges that the System is large and heavy item, with typical pallet(s) weighing 1,000 to 2,000 lbs and ship in a freight truck. The freight carrier will contact you to schedule delivery. Customer acknowledges that an authorized adult will have to be at the delivery address to meet the driver and sign for the System. It is Customer’s responsibility to unpack the item, completing any necessary assembly, and removing any debris. If Customer has any additional delivery requirements, Customer may contact the delivery service to make additional arrangements. MIXSHOP does not guarantee that Customer will be able to make any arrangements other than curbside delivery.
8. PAYMENT OF TAXES. Customer agrees to pay all taxes of every description, federal, state/province, and municipal, that arise as a result of this sale, excluding income taxes.
9. LIMITED WARRANTY AND DISCLAIMER.
- 9.1 Equipment. Warranties for equipment supplied under this Agreement are provided exclusively by the applicable manufacturer(s). To the extent necessary, MIXSHOP will transfer these warranties to Customer after receiving full payment of the Agreement Price. MIXSHOP will make commercially reasonable efforts to coordinate and assist Customer with any equipment warranty claims. Details regarding the scope and application of any warranties associated with the System can be obtained from the applicable manufacturers.
- 9.2 No Other Warranties. The express warranties provided above are exclusive of all other warranties provided by law. MIXSHOP DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- 9.3 No Performance or Savings Guarantees. The energy and financial performance of any PV System depends on factors beyond MIXSHOP’s control (such as weather, cloud cover and shading), Customer’s particular energy demands and utility charges. All energy production and financial performance estimates provided to Customer are calculations based on industry-accepted computer modeling software and assumed utility information. These estimates are not a warranty or guarantee. MIXSHOP does not make any warranty or legal representation concerning the System’s electricity production or financial performance or any reduction in Customer’s utility bills.
- 9.4 Monitoring. Monitoring capability is provided by a third party under contract with the manufacturer of the monitoring equipment. MIXSHOP is not responsible for the impact on the System if Customer loses internet connection or if it is interrupted for any reason.
10. INSPECTION. Customer, upon receiving possession of the Goods, shall have two (2) days to inspect the Goods to determine if the Goods conform to the requirements of this Agreement. If Customer, in good faith, determines that all or a portion of the Goods are non-conforming, Customer may return the Goods to MIXSHOP at MIXSHOP's expense. Customer must provide written notice to MIXSHOP of the reason for rejecting the Goods. MIXSHOP will have 30 days from the return of the Goods to remedy such defects under the terms of this Agreement.
11. DISCLAIMERS. MIXSHOP accepts no liability and makes no guarantee in the following situations:
- 11.1 Contractors. Some jurisdictions require that the installation of the Goods be performed and completed by licensed contractors. It is Customer’s responsibility to determine if a contractor is required in Customer’s jurisdiction. If a contractor is required, it is Customer’s responsibility to make all arrangements for the contractor to install the Goods. MIXSHOP accepts no responsibility for determining the need for contractors or making the arrangements with contractors to install the goods.
- 11.2 Flood Zone. In addition to other requirements, Customer shall be responsible for determining whether the Property lies in any flood zone that could prevent or limit the issuance of any permit for the installation of the Goods. MIXSHOP makes no guarantee and accepts no liability regarding flood zones.
- 11.3 Homeowners’ Association. MIXSHOP accepts no liability, and makes no guarantees, regarding approval from Customer’s Homeowners’ Association (“HOA”), if any. Customer is responsible for complying with any HOA rules and regulations regarding the installation of the Goods.
- 11.4 Timing. MIXSHOP makes no guarantees regarding the timing or completion date of the installation. MIXSHOP will provide the Goods in the manner specified, however, it is the Customer’s responsibility for any installation related matters.
- 11.5 Extra Materials. In the event that the Customer’s HOA or local jurisdiction requires that the system size of the goods be reduced after delivery of the Goods, MIXSHOP shall not be required or obligated to recover any extra materials from Customer or to refund any portion of the Agreement Price. It is the Customer’s responsibility to insure that the number and size if the Goods ordered will conform to any HOA or local jurisdiction rules and regulations. If additional parts are required to install the Goods based on local jurisdiction rules and regulations, it is the sole responsibility of Customer to obtain those required parts.
- 11.6 Utility Interconnection. The Agreement Price includes an interconnection application fee of up to $150. Any fees in excess of this amount are the responsibility of Customer. MIXSHOP makes no warranty or guarantee regarding the interconnection with Customer’s utility provider.
- 11.7 Roof Condition. MIXSHOP makes no warranties regarding the condition of Customer’s roof or area of installation. Customer is responsible to have the roof or area of installation assessed for the structural integrity and ability to bear the load of the panels. Any retrofitting or repairs to the roof or area of installation that are required are the sole cost and expense of Customer. MIXSHOP further disclaims any responsibility or liability for any leaks or damages to the roof, building, electrical system or any other damage caused by the failure of the roof or installation area to support the System or Goods.
12. DESIGN AND CHANGE ORDER FEES. MIXSHOP will provide Customer with a layout (rooftop rendering) for customer’s approval (“Layout”). Customer agrees to review both this agreement and the Layout. System will not be delivered to Customer until MIXSHOP receives both Customer’s acceptance of these terms and Layout approved and signed by Customer. Any changes, modifications, or other alterations requested by Customer will be subject to additional change order and revision fees as follows:
- $200 – Order Change Fee for changes made after these terms have been accepted.
- $250 – Redrafting Fee, for any changes made to the system after plans have been drafted
- All other changes and/or modifications at their actual cost plus a 15% markup.
13. “DO IT YOURSELF” INSTALLATION. Customer is responsible for providing accurate information to MIXSHOP regarding the size and dimensions of the project and Property to enable MIXSHOP to properly draft the plans and layout. Although MIXSHOP shall provide the System to Customer, subject to the terms and conditions stated herein, Customer acknowledges that System shall be installed by Customer, or Customer’s agents. MIXSHOP specifically disclaims any and all liability relating to the installation, including, without limitation, damage to Customer’s property, improper installation, injury or death caused by, or in relation to Customer’s installation of the system. Customer acknowledges the risks associated with a “Do it Yourself” Installation and specifically agrees to accept all risks and liabilities arising therefrom. Customer further agrees to fully indemnify, defend, and hold harmless MIXSHOP, its agents, subsidiaries, vendors and affiliates from any cause of action, claim, or damages that arise out of Customer’s installation of the system, including all reasonable attorney's fees and costs incurred by MIXSHOP in the defense of such causes of action or claims.
14. FORCE MAJEURE. If performance of this Agreement or any obligation under this Agreement is prevented, restricted, or interfered with by causes beyond either party's reasonable control (""Force Majeure""), and if the party unable to carry out its obligations gives the other party prompt written notice of such event, then the obligations of the party invoking this provision shall be suspended to the extent necessary by such event. The term Force Majeure shall include, without limitation, acts of God, fire, explosion, vandalism, storm or other similar occurrence, orders or acts of military or civil authority, or by national emergencies, insurrections, riots, or wars, or strikes, lock-outs, work stoppages, or other labor disputes, or supplier failures. The excused party shall use reasonable efforts under the circumstances to avoid or remove such causes of non-performance and shall proceed to perform with reasonable dispatch whenever such causes are removed or ceased. An act or omission shall be deemed within the reasonable control of a party if committed, omitted, or caused by such party, or its employees, officers, agents, or affiliates.
15. ARBITRATION OF DISPUTES. Both Customer and MIXSHOP agree to attempt to amicably resolve all issues arising out of this Agreement promptly and courteously. Should Customer and MIXSHOP not resolve any issues arising out of this Agreement within 30 (thirty) days, then this paragraph shall apply. The traditional and default way that parties resolve legal disputes is through court, which is slow and expensive. Arbitration is an alternative way to resolve disputes that is faster and less expensive. For these reasons, the Parties choose to use arbitration instead of litigation. Arbitration shall be conducted in KESWICK, ON and administered by a private firm called Judicial Arbitration and Mediation Services, or any other arbitration service that is mutually acceptable to the Parties. If either Party refuses or fails to participate in arbitration after receiving notice thereof, then the arbitrator shall make an award based on the evidence presented to him or her, and shall apply Ontario law. The arbitrator shall award the prevailing Party its attorney fees and other recoverable costs. Any arbitration award shall be final and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction. Arbitration may not be demanded on any claim after the applicable statute of limitation for commencing litigation has expired. These arbitration rights are specifically enforceable under the Federal Arbitration Act.
16. CONFIDENTIALITY. Both parties acknowledge that during the course of this Agreement, each may obtain confidential information regarding the other party's business. Both parties agree to treat all such information and the terms of this Agreement as confidential and to take all reasonable precautions against disclosure of such information to unauthorized third parties during and after the term of this Agreement. Upon request by an owner, all documents relating to the confidential information will be returned to such owner.
17. NOTICE. Any notice or communication required or permitted under this Agreement shall be sufficiently given if delivered in person or by certified mail, return receipt requested, to the addresses listed above or to such other address as one party may have furnished to the other in writing. The notice shall be deemed received when delivered or signed for, or on the third day after mailing if not signed for.
18. COMPLETE AGREEMENT; WRITTEN CHANGES; EXECUTION; NON-WAIVER. This Agreement (including Attachments): (i) contains the entire integrated agreement between the Parties, and supersedes all prior or contemporaneous written or oral communications; (ii) may not be changed orally, but only by a written document signed by the Party against whom enforcement of such change is sought; and (iii) may be executed in several counterparts, each of which shall be an original, but all of which together shall constitute one and the same agreement. Faxed, e-mailed and other forms of electronic signatures are equally binding as originals. No breach of any agreement, warranty, or representation shall be deemed waived unless expressly waived in writing by the Party who might assert such breach.
19. SEVERABILITY. If any provision of this Agreement shall be held to be invalid or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
20. MARKETING AND SIGNAGE. MIXSHOP may photograph the System and Property and use the same in its marketing materials. All such photos belong to MIXSHOP. MIXSHOP will endeavor to protect Customer’s privacy.
21. GOVERNING LAW. This Agreement shall be governed by the laws of Ontario. Any legal action relating to the Work, Project, or this Agreement shall be venued in Keswick, Ontario, and that arbitration shall occur in Keswick, Ontario or any other mutually agreeable location.
22. SUNSHINE PERMIT GUARANTEE.
- 22.1 Permit Applications. Permit applications may require one or more plan revisions. Customer agrees to provide MIXSHOP with all pertinent and necessary information to draft plans and make revisions. Customer further agrees to provide such additional and necessary information within two (10) days if such information is requested of MIXSHOP. The Permit must be applied for with the authority having jurisdiction within 14 days of receiving the completed and/or revised plans.
- 22.2 Disclaimer of Guarantees. MIXSHOP does not guarantee the permit being issued or any timing relating to the permit. Further, any installations by Customer on unsafe, illegal additions or structures not constructed to local building codes and other atypical building designs are neither covered by this Agreement, nor guaranteed in any manner by MIXSHOP. MIXSHOP further gives no guarantee relating to the size of the System, but only that the System will comply with the permit that is issued. MIXSHOP cannot and does not guarantee approval or compliance with Homeowners’ Association (HOA) or utility rules or regulations. Customer is encouraged to review such materials and make arrangements for the System to be reviewed by such entities, if necessary.
23. Customer’s Termination Rights.
- 23.1 For Cause. Customer may terminate performance of this Agreement for cause under the following circumstances if MIXSHOP fails to act in good faith to begin correcting the situation within thirty days after receipt of written demand by the Customer: (i) MIXSHOP becomes insolvent; (ii) MIXSHOP refuses or neglects to supply the System within MIXSHOP’s control; or (iii) MIXSHOP commits a material breach of this Agreement. Customer shall pay MIXSHOP for all Work performed as of the date of such termination for cause, including overhead and profit allocable to such Work performed.
- 23.2 For Convenience. Customer may terminate performance of this Agreement for convenience, provided that Customer immediately pays MIXSHOP for all costs incurred through the date of termination, plus any costs and a fee in the amount of 10% of the Agreement Price for MIXSHOP’s lost overhead. The total of these termination charges shall not exceed the remaining balance of the Agreement Price plus any agreed changes.