The Terms & Conditions in this agreement commence upon submitting an account activation request. This Agreement will remain in effect so long as both the Client (anyone who uses Skyfire Solar Design Services and their customers, clients, representatives, subcontractors, and other personnel associated with the individual or organization ordering services through Skyfire) and Skyfire Solar Design (here forth known as the “Company”) choose to conduct business together. By ordering services from Company you agree to all Terms of this Agreement.

             A. Termination during a project

If the Client chooses to terminate the business relationship during work on a or multiple project(s) that have already been submitted, the Client shall pay Company an amount proportional to the work completed on the project(s) (the “Termination Fee”).  The Termination Fee will be upon the termination of this contract if it applies.

1.    Independent Contractor Relationship

The Company’s relationship to the Client in performing this Agreement is that of an independent contractor, and nothing in this agreement should be construed to create a partnership, joint venture, or employer-employee relationship. Company (a) is not the agent of Client; (b) is not authorized to make any representation, contract, or commitment on behalf of Client; (c) will not be entitled to any of the benefits that Client makes available to its employees, such as group insurance, profit sharing, or retirement benefits (and waives the right to receive any such benefits); and (d) will be solely responsible for all tax returns and payments required to be filed with or made to any federal, state, or local tax authority with respect to Company’s performance of services and receipt of fees under this agreement. The personnel performing services under this Agreement shall at all times be under Company’s exclusive direction and control and shall be employees of Company, and not the Client.  Company shall pay all wages, salaries, and other amounts due its employees in connection with this Agreement and shall be responsible for all reports and obligations respecting them relating to social security, income tax withholding, unemployment compensation, workers’ compensation, and similar matters. Client will not withhold or make payments for social security, unemployment insurance or disability insurance contributions, or obtain workers’ compensation insurance on Company’s behalf. Company shall cover or insure all its employees performing services under this Agreement in compliance with the applicable laws relating to worker’s compensation or employer’s liability insurance. The manner and means that Company chooses to complete its services are in Company’s sole discretion and control.

2.    Conflicting Projects

Any client referred by Client for services must use the client platform to submit a service request and project information to Company. Client’s customers or clients will not be and cannot be directly solicited by Company with any offerings of service without prior approval from Client. In the case a customer or client of Client responds to Company’s indirect marketing such as a digital or print add, automated email campaigns, a referral from Company’s client without Company’s involvement, or by other unintentional means, Company agrees to direct Client’s customers and clients to submit service requests through the Client’s preferred methods. If the Client’s customers and/or clients seeking services from Company no longer uses the Client’s services for any reason, then Company has the right to accept or reject the service requested by the Client’s former customers and/or clients at Company’s sole discretion. 

3.    Confidential Information

Except as legally required, the parties agree that neither party shall directly or indirectly disclose or use any Confidential Information without prior written permission from the other party.

 “Confidential Information” means any type of confidential or proprietary information or material disclosed to or known by the recipient of such information (“Recipient”) as a consequence of or through its relationship with the party disclosing such information, and consisting of information conceived, originated, discovered, or developed in whole or in part by Recipient, which is not generally known by Nonsubject Party personnel, including but not limited to information which relates to research, development, trade secrets, know-how, inventions, technical data, hardware, software, source codes, object codes, manufacture, purchasing, accounting, engineering, marketing, merchandising and selling, business labs or strategies, and information entrusted by third parties to the party disclosing such information.

4.    Representations and Warranties of the Company

Company hereby represents and warrants that (a) any and all work product developed by Company as required to complete a Project for the Client and delivered to the Client in the performance of the Project (hereinafter “Work Product”) will fully conform to the requirements and terms set forth in this Agreement and any applicable Work Order, (b) neither the Work Product nor any element thereof will infringe or misappropriate the intellectual property rights of any third party, and (c) Company will comply with all laws and regulations applicable to Company’s obligations under this Agreement.

5.    Limitations on Company’s Liability

Client understands that any suggestions or recommendations made by Company are only suggestions or recommendations and are taken by Client and their clients at their own risk. Notwithstanding any provision of this agreement to the contrary, the following aspects of a project will not be the responsibility of the Company, and the Company shall not be held liable for these issues under any circumstances.

 A. Information and Project Data Accuracy

Client understands that specific project information is required from Client for Company to deliver services. Company in no way will be held liable for the accuracy of the project information submitted to Company by Client regardless of the way and format the project information is transferred to Company. Client or Client’s clients should vet and confirm the accuracy of project information delivered to Company prior to submission. Client understands that the lack or inaccuracy of project information may cause project delays in which Company shall not be held liable. Client understands that Company may and/or will make assumptions on project details according to Code, industry standards, and best practices which may or may not be accurate. Client is responsible for reviewing and accepting all plan set designs delivered by Company and is responsible for notifying Company of any changes needed due to inaccurate information therein prior to submitting the plan set to AHJs and Utilities. Company will not be held liable and Client or Client’s clients assume all responsibility and liability for the accuracy or inaccuracy of information in the plan set design.

 B. Physical Construction/Installation of Solar System

Company will not be held liable for the physical construction, structural, electrical, mechanical, or otherwise of a designed solar system by Company. Company will not be held liable for the procedures, methods, practices, tools, equipment, or safety measures employed by the Client or the Client’s clients in the installation or construction of the designed solar system. Whether a project requires a professional engineers stamp or not, Company will not be held liable for the structural, electrical, and/or mechanical integrity, new or existing, involved in the project designed by the Company or its outcomes.

 C. Performance of the System

Company will not be held liable for the performance, energy production, energy output, electrical integrity, degradation, damages to, or life span of the equipment installed or used by the Client, Client’s clients, or any of their subcontractors, vendors, clients, or customers.

 D. Physical Harm and Property Damage

Company will not be held liable for property damage caused by any physical harm to an employee or agent of the Client or Client’s clients under any circumstance.

 E. Cancelation of the Project

Company will not be held liable for the cancelation of any project by the Client or Client’s customer for any reason, including, but not limited to loss of profits and/or denial of rebates. Client will still be responsible for paying any fees associated to services and completed work performed by Company on canceled projects.

 F. Project Delays

Company will not be held liable for any project delays, seen or unforeseen, that is out of Company’s control.

 G. Agreements Between the Client their clients and customers

Company will not be held liable for or be bound by any contracts, agreements, or promises made between Client and Client’s subcontractors, vendors, clients and/or customers that are outside the terms of this agreement.

 H. Audits

Company will not be held liable for any audits that may arise against Client, regardless of how the audit came about.

8. Indemnification

A. Of the Client

Company agrees to be responsible for, pay, indemnify and hold harmless, the Client and its respective directors, officers, employees, agents, successors and assigns (the “Client Indemnified Parties”) from, against and in respect of any and all Losses arising from, in connection with, or relating to any breach by the Company of any covenants or agreements contained in this this Agreement.

 B. Of the Company

Client agrees to indemnify and hold harmless the Company and its respective directors, officers, employees, agents, successors and assigns (the “Company Indemnified Parties”) from, against and in respect of, any and all Losses arising from, in connection with, or relating to any breach by the Client of any covenants or warranties contained in this Agreement.

 C. Notice to Indemnifying Party

An Indemnified Party under this Agreement shall, with respect to claims asserted against such party by any third party, give written notice to the Indemnifying Party of any liability which might give rise to a claim for indemnity under this Agreement as soon as is reasonably practicable; provided, however, that any failure to give such notice will not waive any rights of the Indemnified Party. The Indemnifying Party shall have the right, at its election, to take over the defense or settlement of such claim by giving written notice to the Indemnified Party at least ten (10) days prior to the time when an answer or other responsive pleading or notice with respect thereto is required. In the event the Indemnifying Party elects and diligently contests or defends any such claim in good faith, the Indemnifying Party will not be responsible for the fees of separate legal counsel to the Indemnified Party; provided, however, that the Indemnifying Party will not settle any such claim without the written consent of the Indemnified Party, which shall not be unreasonably withheld.

 D. Payment of Claims

With regard to claims of third parties for which indemnification is payable hereunder, such indemnification shall be paid by the Indemnifying Party upon the earlier to occur of: (a) the entry of a judgment against the Indemnified Party and the expiration of any applicable appeal period, or if earlier, five (5) days prior to the date that the judgment creditor has the right to execute the judgment; (b) the entry of an un-appealable judgment or final appellate decision against the Indemnified Party; or (c) a settlement of the claim. With regard to other claims for which indemnification is payable hereunder, such indemnification shall be paid promptly by the Indemnifying Party upon demand by the indemnified party.

 E. Exclusive Remedy

The Company and the Client agree that the sole recourse of the Client Indemnified Parties for any indemnification claims under this Agreement is as set forth in this Agreement. In entering into this Agreement, the Client has relied solely upon its own investigation and analysis and the representations and warranties of the Company in this Agreement, and the Client (i) acknowledges that, except for the specific representations and warranties of the Company contained in this Agreement, neither the Company or any of its Affiliates makes or has made any representation or warranty, either express or implied, as to the accuracy or completeness of any of the information (including any projections, estimates or other forward-looking information provided (including in any management presentations, information memorandum, supplemental information or other materials or information with respect to any of the above) or otherwise made available to the Client or its Affiliates) and (ii) agrees, to the fullest extent permitted by law, that the Company and its Affiliates shall not have any liability or responsibility whatsoever to the Client or its Affiliates or any Client Indemnified Parties on any basis (including in contract or tort, under federal or state securities laws or otherwise) based upon any information provided or made available, or statements made (or any omissions therefrom), to the Client or its Affiliates or any Client Indemnified Party, including in respect of the specific representations and warranties of the Company set forth in this Agreement, except as and only to the extent expressly set forth with respect to such representations and warranties and subject to the limitations and restrictions contained in this Agreement.

9. Insurance

Company, at its sole cost and expense, will maintain appropriate insurance in accordance with generally accepted industry standards.

 10. Client’s Default

If Client fails to perform its obligations under this Agreement, Company may, in its sole discretion, terminate this Agreement.  In the event that Company terminates this Agreement, in addition to any other remedies provided by law, Company may require that Client pay all amounts then due and Company’s reasonable collection costs, including attorney’s fees.

11. Miscellaneous

A. Notices

Any notice, demand, claim or other communication under this Agreement shall be in writing and shall be sent by certified mail, return receipt requested, postage prepaid; facsimile transmission (with proof of sending) or overnight courier to the following addresses:

Company:

 Skyfire Solar Design, LLC

Bill Simmons

11246 E Mercer Ln

Scottsdale, AZ 85259         

eli@skyfiresd.com  

With copy to:

Brian C. Locker, Esq.

Fowler St. Clair, PLLC

8655 E. Via de Ventura

Suite G-225

Scottsdale, AZ  85258

All such notices and communications shall be deemed effective as follows: if mailed, on the third business day following deposit in the mail; if sent by facsimile transmission when sent by facsimile transmission, or if by overnight courier, on the day following delivery to the courier; provided that if such day is not a business day, such notice or communication shall be deemed effective on the next succeeding business day.

 B.   Entire Agreement

This Agreement (including the attached Exhibit A) contains every obligation and understanding between the parties relating to the subject matter hereof and merges all prior discussions, negotiations, and agreements, if any, between them.

 C.   Binding Effect

This Agreement (including the attached Exhibit A) contains every obligation and understanding between the parties relating to the subject matter hereof and merges all prior discussions, negotiations, and agreements, if any, between them.

 D.   Assignment

This Agreement may not be assigned by any party without the written consent of the other party.

 E.   Amendment

This Agreement may not be assigned by any party without the written consent of the other party.

 F.    Severability

If any one or more of the provisions contained in this Agreement shall be declared invalid, void or unenforceable, the remainder of the provisions of this Agreement shall remain in full force and effect, and such invalid, void or unenforceable provision shall be interpreted as closely as possible to the way it was written.

 G.   Expenses

Each party agrees to bear its own costs in connection with the preparation of this Agreement and the consummation of the transactions contemplated hereby.

 H.   Counterparts; E-mail or Facsimile

This Agreement may be executed in any number of counterparts and via e-mail or facsimile, each of which shall be deemed an original but all of which together shall constitute one and the same instrument.

 I.     Governing law; Jurisdiction

This Agreement has been entered into and shall be construed and enforced in accordance with the laws of the State of Arizona without reference to the choice of law principles thereof. This Agreement shall be subject to the exclusive jurisdiction of the courts of Arizona. The parties to this Agreement agree that any breach of any term or condition of this Agreement shall be deemed to be a breach occurring in the State of Arizona by virtue of a failure to perform an act required to be performed in the State of Arizona and irrevocably and expressly agree to submit to the jurisdiction of the courts of the State of Arizona for the purpose of resolving any disputes among the parties relating to this Agreement or the transactions contemplated hereby. The parties irrevocably waive, to the fullest extent permitted by law, any objection which they may now or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to this Agreement, or any judgment entered by any court in respect hereof brought in Maricopa County, Arizona, and further irrevocably waive any claim that any suit, action or proceeding brought in Maricopa County, Arizona has been brought in an inconvenient forum.

 J.    Further Assurances

The parties hereto shall deliver any and all other instruments or documents required to be delivered pursuant to, or necessary or proper in order to give effect to, all of the terms and provisions of this Agreement.