Terms & Conditions Agreement
Please read the following Terms & Conditions Agreement carefully. You hereby agree to be bound by these terms and all terms incorporated herein by reference. It is your responsibility to read the Terms & Conditions Agreement before proceeding to our site. If you do not expressly consent to ALL of the terms and conditions in the Terms & Conditions Agreement, then please do not access this site or use the services herein.
This Terms & Conditions Agreement is effective June 2018. By accessing, browsing, or otherwise using diysolarpower.com, requesting a quote, placing an order, or accepting any products and/or services from DIY Solar Power, LLC (henceforth referred to as “Seller”), you acknowledge and agree that all products and services provided by or on behalf of Seller to you and/or your subsidiaries or affiliates (henceforth collectively referred to as “Customer”) shall be governed exclusively by this Terms & Conditions Agreement (henceforth referred to as “T&Cs”), which shall control, regardless of any additional or conflicting legal terms and/or conditions contained or referenced in any quotation, order, acknowledgement, invoice, website, correspondence, request, proposal, contract, or other document or form issued by or on behalf of Customer, including, but not limited to, at any time during the course of dealing or performance, all of which are hereby rejected and deemed void and of no force or effect. Seller’s acknowledgement and/or acceptance of any order shall not be deemed an acceptance of any other terms and/or conditions or a waiver of the provisions thereof; instead, these T&Cs may only be modified, waived, supplemented, or superseded with the express prior written consent of an authorized officer of Seller. Notwithstanding the foregoing, Seller reserves the right, in its sole discretion, to periodically revise these T&Cs without any notice, written or otherwise. Seller reserves the legal right to accept or reject any order of any kind.
Payment Terms: Payment for all amounts due hereunder shall be due immediately, prior to shipping, requiring full payment in cash before order entry, shipment, or delivery.
Any order for products by Customer shall constitute a representation that Customer is solvent and has the ability to pay its obligations as they become due. In addition, upon Seller’s request, Customer will furnish a written representation concerning its solvency at any time prior to shipment.
If Seller deems itself uncertain with respect to Customer’s ability to pay, Seller may, in its sole discretion, implement the following actions: (a) withhold, defer, or cancel shipments and/or orders; (b) require cash in advance; (c) demand immediate payment of all amounts then owed and pursue collection actions (including, but not limited to, attorneys’ fees and costs of collection); and/or (d) impose, revoke, or revise Customer’s credit limits. Seller may also impose, revoke, or revise Customers credit limits, if any, at any time and for any reason
Customer agrees to give Seller current credit information, current annual financial statements, and proper authorizations for Seller to request financial information on Customer from third parties. All amounts and payments are in U.S. dollars only. Seller may set-off and/or deduct for any sums owed by Customer. Customer has no legal right to withhold or set-off any amounts against Seller or its affiliates.
In the event of Customer’s bankruptcy or insolvency, or in the event any proceeding is brought against Customer, voluntary or involuntary, under any bankruptcy or insolvency laws, Seller shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate, and shall receive reimbursement for its proper cancellation charges. Sellers’ rights under this article are in addition to all rights as they are available to it at law or in equity.
If Customer and Seller mutually agree to use an electronic method or system to facilitate purchase and sale of transactions, Customer agrees that it will not contest any of the following: (i) any contract of sale resulting from such electronic means of data exchange under the provisions of any law relating to whether agreement must be in writing or signed by Customer and Seller to be bound thereby; or (ii) the admissibility of copies of electronic records under the business records exception to the hearsay rule, the best evidence, or any other similar rule, on the basis that such records were not originated or maintained in documentary form. Customer and Seller will agree on technical standards and methods to use in making electronic purchases and will use reasonable security procedures to protect electronic records from improper access. In the event of a conflict, the business records maintained by Seller regarding electronic purchases made by Customer shall be deemed acceptable and conclusive.
In addition to any price specified herein, Customer shall pay the gross amount of any present or future tax, which includes, but is not limited to, sales, use, excise, value-added, or other similar form of tax, which is applicable to the price, sale, or delivery of any given product or service furnished hereunder, unless Customer furnishes Seller with a legal tax exemption certificate acceptable to any taxing or governing authorities.
Returns: All purchases for products and services are final and non-refundable.
However, returns will be accepted if prior authorization is obtained from Seller, which shall be in Seller’s sole discretion, the product is in brand new condition and in the original, undamaged manufacturer’s package with sales receipt or invoice. Credit will be issued, if at all, based on Customer’s purchase price for the returned product less a 30% vendor restocking charge, freight, insurance, and all other expenses of disposal. Only current items in their original cartons standard package quantities are subject to return. All unauthorized returns will be sent back to Customer at Customer’s expense. Return shipments must be pre-paid and shipped in accordance with the instructions set forth on the return authorization form. Credit will be issue, less any transportation charges and service charges, to cover handling, inspection, counting, repacking, restocking, etc.
Customer shall accept partial or pro rate deliveries in commercial units as full performance under Customer’s order if Seller is unable to fill Customer’s entire order. All products shall be shipped FOB SHIP POINT, prepaid and billed, unless otherwise agreed by Seller in writing. Title and risk of loss pass to Customer on tender of delivery to the carrier. If products are damaged in transit, Customer’s sole recourse is to file a claim with the carrier. Customer understands that delivery dates are estimates only and Seller shall not be liable for any late or delayed delivery.
Customer acknowledges that Seller is a distributor and not a manufacturer and that Seller is not responsible for the design, fabrication, or manufacture of any materials, equipment, tools, or other goods provided by or on behalf of Seller, including for any defects therein. Seller is also not liable for defects in information, labeling, instructions, or packaging provided by secondary sources. Any warranty issued by the manufacturer shall be solely that of the manufacturer and not of Seller. Seller warrants good title to Customer and otherwise Seller shall assign to Customer, effective upon transfer of title, all assignable warranties of the manufacturer. Seller hereby authorizes Customer to make or settle any claims under such manufacturer’s warranties directly with any such manufacture and Customer acknowledges that it shall have recourse only under such warranties and only as against each such manufacturer. Each jurisdiction’s laws, regulations, codes, and standards may vary regarding product labeling, warnings, instructions, specifications, manufacture, and installation, as well as regarding construction, zoning, and/or use of goods for a specific purpose; thus, Customer agrees that certain goods may not be appropriate for all areas or applications and Customer hereby agrees that Customer is solely responsible for ensuring proper compliance with all such laws, rules, regulations, codes, and standards. Customer shall comply with all applicable laws, rules, codes, standards, and regulations including, but not limited to, those concerning exports, anti-corruption, anti-bribery, child labor, affirmative action, and conflict minerals. EXCEPT FOR THE WARRANTIES OF TITLE ABOVE, SELLER MAKES NO WARANTY, EXPRESS OR IMPLIED, AND DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ANY WARRANTY AGAINST DEFECTS IN DESIGN, MATERIALS OR WORKMANSHIP, AND ANY WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE. CUSTOMER’S EXCLUSIVE REMEDIES AGAINST SELLER FOR BREACH OF WARRANTY ARE REPAIR OR REPLACEMENT OF GOODS, REPERFORMANCE OF SERVICES, OR CREDIT OF THE PURCHASE PRICE PAID, AT SELLER’S OPTION, WHICH MAY ONLY BE EXERCISED WITHIN ONE (1) YEAR OF PERFORMANCE (FOR SERVICES) OR SHIPMENT (FOR GOODS). SELLER’S OBLIGATIONS UNDER THIS SECTION 5 SHALL BE VOID UNLESS CUSTOMER PROVIDES SELLER WITH WRITTEN NOTICE OF THE NON-CONFORMITY IN THE GOOD OR SERVICE WITHIN THIRTY (30) DAYS OF DISCOVERY.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES AGREE THAT IN NO EVENT SHALL SELLER BE LIABLE TO CUSTOMER OR ITS OWNERS OR AFFILIATES, OR ITS/THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, CUSTOMERS, AGENTS, CONTRACTORS, ASSIGNEES, OR REPRESENTATIVES, OR END USERS OF ANY GOODS OR SERVICES FOR: (A) ANY SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, LIQUIDATED, INCIDENTAL, OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, FOR LOSS OF PROFITS, USE, TIME, DATA, FINANCING, OR INCOME, OR FOR RENTAL EXPENSES, FOR LEASE EXPENSES (BOTH REAL PROPERTY OR EQUIPMENT), OR FOR LOSS OF BUSINESS AND REPUTATION, FOR LOSS OF MANAGEMENT OR EMPLOYEE PRODUCTIVITY OR OF THE SERVICES OF SUCH PERSONS, FOR PRINCIPAL OFFICE EXPENSES INCLUDING THE COMPENSATION OF PERSONNEL STATIONED THERE, WHETHER IN CONTRACT, TORT, OR OTHERWISE RESULTING FROM ITS PERFORMANCE, NON PERFORMANCE, OR DELAY HEREUNDER, AND WHETHER OR NOT SELLER HAD NOTICE OF THE POSSIBILITY THEREOF; AND (B) CLAIMS ARISING FROM ORDINARY WEAR AND TEAR, MISUSE, ABUSE, MISREPAIR, MISAPPLICATION, MODIFICATION, UNAUTHORIZED COMBINATION, IMPROPER SELECTION, FAILURE TO MAINTAIN, AND/OR IMPROPER INSTALLATION OF GOODS.
SUBSTITUTE LIMITATION: IF A COURT OF COMPETENT JURISDICTION HOLDS THAT THE ABOVE LIMITATIONS OF WARRANTIES, LIABILITIES, AND REMEIDES CONTAINED HEREIN, OR ANY PORTIONS THEREOF, ARE VOID OR UNENFORCEABLE FOR ANY REASON, CUSTOMER EXPRESSLY AGREES THAT UNDER NO CIRCUMSTANCE SHALL SELLER’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER RESULTING FROM, ARISING OUT OF OR IN CONNECTION WITH PROVIDING GOODS AND/OR SERVICES PURSUANT TO AN ORDER OR FOR A PROJECT EXCEED THE AMOUNT PAID FOR THE GOOD OR SERVICE GIVING RISE TO THE CLAIM AT ISSUE, OR $10,000.00, WHICHEVER IS LESS.
Governing Laws: The validity, interpretation, and performance hereof, and any dispute connected herewith, shall be governed and construed in accordance with the laws of the State of California, without regard to is conflict of laws or principles. Notwithstanding the foregoing, any legal action by Customer concerning these T&Cs and/or any products or services provided by or on behalf of Seller must be commenced within one (1) year after the cause of action has risen.
Taxes and Other Governmental Amounts: Customer shall pay any and all applicable taxes, duties, tariffs, import fees, export fees, penalties, and similar charges levied by any government authority or agency in connection with products and/or services provided by or on behalf of Seller to Customer. Unless otherwise expressly agreed by Seller in writing, such charges are not included in the price of products or services and will be added to the amounts due by Customer. Ultimately, Customer is responsible for any and all additional taxes, fees, duties, and penalties from taxing or other governmental authorities and/or agencies, and all legal expenses incurred by Seller, if applicable, due to changes in such amounts between the date of order and date of shipping, or from incorrect or incomplete documentation or other information furnished by Customer.
Force Majeure: Seller shall not be liable, in any way, shape, or form, for any delay, impairment, or prevention of Seller’s purchase, in whole or in part, due to any event, circumstance, or occurrence that is not within Seller’s control, including, but not limited to, acts of God, labor disruptions, acts of war, acts of terrorism (actual or threatened), governmental decrees or controls, imposition of or changes to tariffs or duties, changes to commodity markets, insurrections, epidemics, quarantines, shortages, communication or power failures, fires, accidents, explosions, inability to produce or ship goods or obtain permits or licenses, inability to procure supplies or raw materials, severe weather conditions, catastrophic events, or any other event, circumstance, or cause beyond Seller’s reasonable control, that is not listed before, within the normal conduct of its business (henceforth collectively referred to as “Force Majeure”). If Seller’s performance is so delayed, impaired, or prevented by Force Majeure, Customer agrees that Seller may, at Seller’s option, do one of the following: (i) suspend or terminate contract; and/or (ii) increase pricing and/or schedules for delivery or performance, in each case, without liability or penalty to Seller.
Intellectual Property: Customer shall have no right, title, or interest in, to, or under Seller’s trademarks, tradenames, patents, copyrights, domain names, trade dress, product names, catalogs, or other intellectual property rights, or to any such intellectual property rights of the manufacturers or sub-suppliers of products provided by or on behalf of Seller pursuant hereto.
Independent Contractor: The status of Seller and its personnel and any subcontractors is and will be that of independent contractors, and no such personnel or subcontractors will, at any time or for any purpose, be deemed Seller’s employees or agents.
Dispute Resolution: Seller and Customer shall exercise their best efforts to resolve by negotiation any and all disputes, controversies, or differences arising out of or relating to these T&Cs or the products or services provided by or on behalf of Seller to Customer in connection herewith. Seller and Customer irrevocably submit to the jurisdiction of the state and federal courts located in Los Angeles, California for all disputes, controversies, or differences between Seller and Customer that are not settled by negotiation. Seller and Customer waive any right to object to such jurisdiction, except, at Seller’s sole discretion, a suite filed in order to perfect a lien or stop payment notice claim or bond claim may be filed in the state in which the project is located. For disputes, controversies or differences between Seller and Customer that are resolved by litigation or arbitration (if both Seller and Customer agree to arbitration), the prevailing party shall be entitled to recover its reasonable attorney’s fees and all expenses and costs associated and incurred, including arbitration fees and costs (as applicable) and expert witness fees, as against the non-prevailing party, in addition to any other relief to which the prevailing party is entitled.
Assignment: Customer shall not assign any order, or interest therein, without Seller’s express prior written authorization. Actual or attempted assignment without Seller’s prior written consent shall be void and unenforceable and shall entitle Seller to cancel such order upon notice to Customer.
Third Parties: These T&Cs are solely for the benefit of Seller and Customer, and no person or party is conferred any right, benefits, or claims hereto.
Severability: If any term in these T&Cs is to any extent found invalid or unenforceable, such term shall be excluded to the extent of such invalidity or unenforceability, and all other terms hereof shall remain in full force and effect; and, to the extent permitted and possible, the invalid or unenforceable term shall be deemed replaced by a term that is valid and enforceable and that comes closest to expressing the intention of such invalid or unenforceable term. If such replacement is not permitted and possible, the invalid or unenforceable term shall be severed from these T&Cs, and the remaining terms and conditions shall be valid and fully enforceable as written.
Entire Agreement: These T&Cs, together with the commercial (i.e. non-legal) terms of Seller’s forms, acknowledgements, quotations, proposals, invoices, contracts, and any and all other agreements constitute the entire and exclusive agreement between Seller and Customer only. All typographical or clerical errors made in these T&Cs or by seller in any quotation, acknowledgement, agreement, proposal, contract, or publication are subject to correction by Seller, at its sole discretion.
Seller endeavors to provide current and accurate information on diysolarpower.com. However, misprints, errors, inaccuracies, omissions (including incorrect specifications for products) or other errors may sometimes occur unintentionally. Customer should independently evaluate the accuracy of the information and these usefulness for Customer’s particular needs of any product or service available through this Web Site and company. Seller cannot guarantee that products and services advertised on this Web Site will be available when ordered or thereafter. Specifications for products and services are subject to change without notice, and Seller reserves the right to make changes to processing, materials, or configuration without notice. Seller does not warrant that the content of this Web Site, including, without limitation, unintentional product descriptions or photographs, is accurate or complete.
Seller reserves the right to reject any order Customer places, and/or to limit quantities on any order, without giving any express reason. If Seller rejects Customer’s order, Seller will generally attempt to notify you using the email address that you provided when you placed your order.
Although care has been taken to ensure the accuracy of the information on this Web Site, Seller assumes no responsibility; therefore, ALL CONTENT IS PROVIDED “AS IS” AND “AS AVAILABLE.” Seller HEREBY EXPRESSLY DISCLIAMS ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT, OR AS TO THE OPERATION OF THIS WEB SITE OR THE CONTENT. DIY Solar Power, LLC DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS AS TO THE SECURITY OF THIS WEB SITE. YOUR USE OF THIS WEB SITE IS AT YOUR RISK. YOU ACKNOWELDGE ANY INFORMATION SENT MAY BE INTERCEPTED. DIY Solar Power, LLC DOES NOT WARRANT THAT THE WEB SITE OR THE SERVERS WHICH MAKE THIS WEB SITE AVAILABLE OR ELECTRONIC COMMUNICATIONS SENT BY DIY Solar Power, LLC ARE FREE FROM VIRUSES OR ANY OTHER HARMFUL ELEMENTS.
IN NO EVENT WHATSOEVER SHALL Seller BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE, SPECIAL, OR INCIDENTAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, CONTRACT, REVENUE, DATA, INFORMATION, OR BUSINESS INTERRUPTION) RESULTING FROM, ARISING OUT OF, OR IN CONNECTION WITH THE USE OF, OR INABILITY TO USE THIS WEB SITE OR THE CONTENT, EVEN IF, Seller HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. ANY ACTION BROUGHT AGAINST Seller PERTAINING TO OR IN CONNECTION WITH THIS WEB SITE MUST BE COMMENCED AND NOTIFIED TO Seller IN WRITING WITHIN ONE (1) YEAR AFTER THE DATE THE CAUSE FOR ACTION AROSE.
Since Customer agrees to inspect and sign off on all products delivered, which serves as a certification to ensure that correct quantity as well as quality of products was successfully delivered, Seller is not responsible for any damage.
Different jurisdictions have varying laws, codes, and regulations governing construction, installation, and/or use of materials for particular purposes. Certain materials may not be available for sale in all areas. Seller does not guarantee compliance or suitability of the materials it sells with any specific laws, codes, or regulations, nor does Seller accept responsibility for construction, installation, and/or use of materials purchased. It is Customer’s responsibility to review the product application and all applicable laws, codes, and regulations for each relevant jurisdiction to be sure that the construction, installation, and/or use involving the materials are compliant.
Seller is not responsible for any accidents caused by Customer installing their Solar System at any point in time.
Customer and/or Third Party is/are solely responsible for all safety requirements and training relative to installation of their Solar System.
Services Provided: Seller can provide ancillary service for a fee. These include, but are not necessarily limited to, site surveying, design and engineering, interconnection, permitting (permit fees not included). Site Surveys are based on preliminary satellite imagery, which are only estimates. Shading can affect estimated production figures. Seller can facilitate interconnection if the Customer obtains Final Sign-Off by the City, County, and/or Authority Housing Jurisdiction (AHJ) responsible for approving their installation. Seller can also provide recommendations for certified mechanical solar installers and/or certified solar electricians and installers in Customer’s area.