Commercial Energy Products Purchase Agreement
V2.6, 01/22/2021
Tesla, Inc.
1 Energy Products Purchase Agreement
Terms & Conditions
1. Authorization; Representations. By your acceptance of this Agreement (by electronic acceptance or signature), you represent and agree that you are an authorized representative of Buyer, permitted to bind Buyer in this Agreement. If applicable, you and Buyer further represent and warrant to Tesla that all financial information that you or Buyer has provided (or will provide) to Tesla is true and accurate and fairly represents Buyer’s financial position as at the date it was provided.
Tesla may terminate this Agreement if any of the representations in this Section 1 are incorrect.
2. Purchase. Buyer agrees to purchase the “Products” indicated in the Price Sheet. Tesla agrees to sell Buyer the Products and install them at the address you provided in the Price Sheet (the “Site”). References in this Agreement to specific products (as applicable, Solar System and Storage System, each as included and defined in the Price Sheet) only apply if Buyer is purchasing those products. Notwithstanding the above, prior to installing the Products, Tesla may review Buyer’s credit, and Tesla shall have the right to terminate this Agreement in its sole discretion based upon the outcome of such credit review.
3. Contract Price. The Price Sheet shows the price of the Products and their installation (“Contract Price”). The Contract Price is charged in accordance with the Schedule of Payments on the Price Sheet, and payment is due thirty (30) days after the date of each invoice. Subject to Section 4, the Contract Price is inclusive of all taxes and permitting fees. The Contract Price does not include, and Tesla is not obligated to provide, any ongoing services in connection with the Products (including maintenance services), except as required in connection with Tesla’s limited warranties in Section 12.
4. Changes to Price Sheet.
(a) Tesla’s obligation to install the Products is conditioned on such work falling with Tesla’s “Standard Scope”, which assumes standard wage rates, no unforeseen site conditions, no significant upgrades to existing electrical works, interconnection fees not to exceed $1,000, and customary government costs, taxes and fees. Further information about what constitutes Tesla’s Standard Scope is available upon request. (b) Tesla has the right to update the Price Sheet if, upon further diligence regarding the Site, Tesla determines that there are conditions outside of the Standard Scope. If Buyer does not reject the updated Price Sheet within thirty (30) days and cancel this Agreement, the changes will be deemed accepted. (c) In addition, Tesla may in its sole discretion determine that because of issues beyond the Standard Scope, Tesla will not install the Products. In such case, Tesla may terminate this Agreement by notice to Buyer, and if applicable shall refund the Order Payment.
5. Installation; Service. Tesla will contact Buyer to schedule installation of the Products. Installation will be performed by Tesla or an affiliate or subcontractor, at Tesla’s election. If the Products include a Storage System, then Tesla will commission the System in accordance with its standard practices. Buyer authorizes Tesla, or its affiliate or subcontractor, to submit on Buyer’s behalf any permit or interconnection application that is required in connection with the Products. Buyer also agrees to give Tesla, or its affiliate or subcontractor, access to the Site as scheduled so Tesla can install and service the Products. Buyer is responsible for all existing property conditions at the Site, whether known or unknown.
6. Payment. By entering into this Agreement, Buyer agrees to pay the Contract Price as described in the Price Sheet.
Tesla may provide combined or separate invoices for each of the Products. Title to the products will transfer to Buyer after Tesla (i) completes installation and (ii) receives payment in full of the Contract Price.
7. Order Payment. The Order Payment (if any) that Buyer previously paid for the Products is now non-refundable, except in the circumstances described in Section 4(c). When this Agreement becomes effective, Tesla incurs significant costs preparing to install the Products. The Order Payment is a reasonable estimate of the damages Tesla would incur if Buyer cancels its order before the Products are installed.
8. Privacy. The Tesla Customer Privacy Policy is part of this Agreement. You, as the authorized representative of Buyer, agree to be contacted at the phone number listed in the Price Sheet with more information or offers about Tesla products. You understand these calls or texts may use automated dialing or pre-recorded messages. This consent is not a condition of purchase. You may opt out of this consent at any time by contacting Tesla at 1-888-765-2489.
9. Intellectual Property. Tesla owns all intellectual property rights associated with the Products. Tesla grants Buyer a non-exclusive license to use any embedded software, only in connection with the operation of theProducts.
Commercial Energy Products Purchase Agreement
V2.6, 01/22/2021
Tesla, Inc.
2 10. Remote Monitoring and Firmware Upgrades.
(a) Buyer agrees that Tesla may access the Products remotely to monitor performance, perform diagnostics and upgrade firmware. This monitoring requires a high speed internet line, which Buyer must provide at Buyer’s cost. If Buyer does not maintain this internet connection, Tesla cannot monitor the Products. Tesla is not responsible for any issues arising from Buyer’s failure to provide an internet connection, or a failure of monitoring arising from the same. (b) “Buyer Data” consists of the data related to the Products which Tesla makes available to Buyer via the Tesla app or any other performance monitoring provided by Tesla. Buyer Data shall be owned by Buyer. Tesla may use Buyer Data (i) to perform its obligations under this Agreement including any warranties, (ii) to improve Tesla's products and services generally (including by performing analyses on such information), and (iii) to aggregate with other data. Public disclosure of such information by Tesla is permitted if neither Buyer nor the owner or long-term occupant of the site where the Products are located (the “Site Host”) could reasonably be identified from the publicly disclosed information. (c) Any information obtained by Tesla through remote monitoring of the Products that is not Buyer Data shall be owned by Tesla (“Tesla Data”), shall be confidential information of Tesla, and shall not be required to be made available by Tesla to any person.
11. Maintenance & Operation. Tesla will provide Buyer with an initial copy of an applicable solar, storage or charging system operation and maintenance guide (as updated by Tesla from time to time, the “Manuals”). The Manuals provide Buyer with operation and maintenance instructions, answers to frequently asked questions, and service information. Buyer must cause the Products to be maintained in accordance with the Manuals (including by contracting with Tesla for maintenance services). In addition, Buyer must comply with the Manuals, to the extent the Manuals apply to Buyer’s activities at the Site.
12. Limited Warranties. The Products and installation work are covered by the following limited warranties. THESE
ARE THE ONLY EXPRESS WARRANTIES MADE IN CONNECTION WITH THE PRODUCTS AND INSTALLATION WORK. Any other warranties, remedies and conditions, whether oral, written, statutory, express or implied (including any warranties of merchantability and fitness for purpose, and any warranties against latent or hidden defects) are expressly disclaimed. If such warranties cannot be disclaimed, Tesla limits the duration of and remedies for such warranties to the durations and remedies described below.
Solar System The solar panels are covered by a warranty from their manufacturer. This warranty will cover defects for at least 10 years and will guarantee at least 80% of nameplate power capacity for at least 25 years. This warranty will be transferred to Buyer automatically when Tesla receives the Contract Price.
Inverter The inverter is covered by a warranty from its manufacturer. This warranty will cover defects for at least 10 years, and will be transferred to Buyer automatically when Tesla receives the Contract Price. If Buyer needs to replace the inverter after this warranty expires, Buyer can contact Tesla to discuss Tesla installing replacement at Buyer’s cost; or Buyer can work with a different service provider.
Storage System The Storage System is covered by the Tesla Limited Warranty applicable to the product and model purchased. By approving this Agreement, Buyer accepts the terms of the Tesla Limited Warranty for the applicable product, which can be obtained on our website or will be provided upon request.
In order to maintain the Tesla Limited Warranty, maintenance on the Storage System must be performed by Tesla, a Tesla affiliate or subcontractor, or a Tesla-certified maintenanceprovider.
Electric Vehicle
Charging System
The Electric Vehicle Charging System is covered by the Tesla Limited Warranty applicable to the product and model purchased. By approving this Agreement, Buyer accepts the terms of the Tesla Limited Warranty for the applicable product, which can be obtained on our website or will be provided upon request.
Workmanship Tesla warrants that (a) Tesla’s installation workmanship will be free from defects for 10 years from the date the Products are installed (or, in the case of main panel or structural upgrades, 1 year from the date those upgrades were performed); (b) Tesla’s installation workmanship will not invalidate the manufacturer’s warranty for the solar panels or inverter, or the applicable Tesla Limited Warranty; (c) all roof penetrations made by Tesla will be watertight for the longer of 10 years or until the end of any existing installation warranty for the roof; and (d) Tesla will not damage Commercial Energy Products Purchase Agreement
V2.6, 01/22/2021
Tesla, Inc.
3 13. Warranty Exclusions. The “Workmanship” warranty above does not cover any defect caused by (1) events beyond Tesla’s reasonable control, including but not limited to lightning, flood, earthquake, fire, excessive wind and other extreme weather events, accidents, abuse, misuse or negligence; (2) Buyer’s failure to operate or maintain the Products in accordance with the applicable owner’s manual(s); (3) strikes by balls or other objects, dirt, dust, bird excrement, animals, insects, foliage or algae growth; (4) roof leaks caused by ordinary wear and tear, or water entering around a fitting, accessory or other material not installed by Tesla; (5) any material or equipment connected to the Products that was not installed by Tesla; or (6) someone other than Tesla installing, altering, removing, re-installing or repairing any part of the Products unless that person does so in compliance with the applicable owner’s manual(s). The “Workmanship” warranty also does not cover (i) any defects in the equipment or components incorporated into Tesla’s work (such as breakers, electrical panels, softstart devices for HVAC equipment, etc.); (ii) pre-existing conditions at the Site, including but not limited to unpermitted conditions, improper electrical wiring, defects in the roof structure that cause it to sag over time, skylight or exhaust vent heights that are reduced by the Solar System, cracked or crumbling masonry, or inadequate attic ventilation; (iii) normal wear and tear or deterioration, or superficial defects, dents or marks that do not impact the performance or functionality/integrity of the Products; or (iv) theft or vandalism. The warranties for “Solar panels”, “Inverter” and “Storage System” (as applicable) above are not subject to the above exclusions, but are subject to other exclusions which are described in the relevant warranty document.
14. IP Indemnity.
(a) As used in this Section 14, “Representatives” means Buyer and Buyer’s affiliates, and their respective directors, officers, partners, members, shareholders, agents, employees, subcontractors, successors and assigns; “Losses” means damages and liabilities, including reasonable attorneys’ fees; and “Claim” means a claim, action, suit, proceedings, demand, investigation or assessment made or brought by any third party. (b) Tesla shall indemnify, defend and hold harmless Buyer and its Representatives from any Losses arising out of any Claim alleging that the Products infringe the intellectual property rights of a third party. However, Tesla shall have no obligation to indemnify Buyer or any of its Representatives to the extent the Claim arises out of: (a) use of the Products in combination with any other products, materials or equipment not expressly authorized by Tesla; or (b) any modifications or changes made to the Products other than by Tesla. If a Claim for infringement or alleged infringement of any intellectual property rights is made, Tesla may, at its own expense, (i) modify any or all of the intellectual property rights so as to avoid the infringement or the alleged infringement; or (ii) take such other action as Tesla deems reasonable to avoid or settle such Claim.
15. Limitation of Liability. Tesla and Buyer shall not be liable to one another for any indirect, special or consequential damages arising out of this Agreement. To the fullest extent permitted by law, Tesla and Buyer’s aggregate liability to one another under this Agreement is limited to the Contract Price. This Section 15 applies, without limitation, to any liability arising out of any Site survey performed by Tesla or its affiliate or subcontractor in connection with this Agreement. This Section 15 does not apply to Buyer or Tesla’s obligation to indemnify the other for third-party claims, as required under Section 14 or otherwise under applicable law.
16. Term; Breach; Remedies.
(a) This Agreement will continue in effect until Tesla has completed installation of the Products and received payment in full of the Contract Price, unless earlier terminated as permitted in Section 4 or this Section 16. (b) If Tesla or Buyer is in breach of this Agreement, upon thirty (30) days prior written notice and opportunity to cure, the non-defaulting party may terminate this Agreement; and with or without terminating this Agreement, may pursue any remedy it has under this Agreement or at law, including in Tesla’s case, repossession of the Products (if title has not yet transferred) and collection of all amounts due (including those past due, which will be charged 2% interest per annum). (c) Provisions of this Agreement which by their nature contemplate or govern performance or observance subsequent to the termination or expiration of this Agreement shall survive such termination or expiration until fully performed.
the Site during our installation of the Products. If Tesla breaches this workmanship warranty, Tesla will repair the defective work, roof penetration or damage at Tesla’s cost. If Tesla cannot do this itself, Tesla will pay for someone else to do it. Such repair work shall not extend the original warranty period, but the remainder of the original warranty period shall apply to the repair work.
Commercial Energy Products Purchase Agreement
V2.6, 01/22/2021
Tesla, Inc.
4 17. Governing Law; Integration. This Agreement is governed by the laws of the State where the Products are installed.
The information at the links described above is part of this Agreement. Any other terms relating to the Products that are not contained or referred to in this Agreement are not binding on Tesla or Buyer.
18. Assignment. Tesla may, without need for Buyer’s consent, assign, mortgage, pledge or otherwise directly or indirectly assign this Agreement and/or its interests in this Agreement (a) as collateral in connection with its financing activities; and (B) to any third party (including any affiliate of Tesla) or any person succeeding to all or substantially all of the assets of Tesla; provided, that, in the case of assignments to a third party under clause (b), Tesla is not released from liability hereunder as a result of any assignment to an affiliate unless the assignee assumes Tesla’s obligations hereunder by binding written instrument.
19. Insurance. Tesla shall maintain, at its sole cost and expense, the following insurance coverage and shall, within a reasonable time of Buyer’s request, furnish to Buyer a certificate evidencing such coverage:
(a) Commercial General Liability Insurance (CGL). Tesla carries commercial general liability insurance with coverage amounts that meet or exceed those required by law. (b) Workers' Compensation Insurance. Tesla carries workers' compensation insurance for all employees in compliance with law.
20. Further Assurances. Tesla and Buyer shall each at their own cost and expense execute and deliver such further documents and instruments and shall take such other actions as may be reasonably required or appropriate to evidence or carry out the intent and purposes of this Agreement.
21. Arbitration. Any dispute arising from or relating to this Agreement shall first be promptly referred to the senior level management of the Parties for resolution. If Tesla and Buyer are unable to resolve any such dispute within 20 days after referral, then Tesla or Buyer may take such dispute to binding arbitration in accordance with the then-current Streamlined Arbitration Rules of the Judicial Arbitration and Mediation Services (“JAMS”). The existence, content and result of the arbitration shall be confidential and conducted by a single arbitrator in English and in Santa Clara, California, unless otherwise agreed by the Parties. Buyer and Tesla will each bear its own expenses in the arbitration and will share equally the costs of the arbitration; provided, however, that the arbitrator may, in its discretion, award reasonable costs and fees to the prevailing party. Judgment upon the award rendered in the arbitration may be entered in any court of competent jurisdiction.