AGREEMENT TO SELL AND PURCHASE ENERGY - This is an Agreement between Energy Solutions Co., LLC (ESCO) ("Energy Solutions" or Seller) and the undersigned customer ("Customer") under which Customer shall initiate natural gas service and begin enrollment with Energy Solutions (the "Agreement"). Subject to the terms and conditions of this Agreement, Energy Solutions agrees to sell and facilitate delivery, and Customer agrees to purchase and accept the quantity of natural gas, as estimated by Energy Solutions, necessary to meet Customer's requirements based upon consumption data obtained by Energy Solutions or the delivery schedule of the Local Distribution Company (the "LDC"). The amount of natural gas delivered under this Agreement is subject to change based upon data reflecting Customer's consumption obtained by Energy Solutions or the LDC's delivery schedule. The LDC will continue to deliver the gas supplied by Energy Solutions.
TERM - This Agreement shall commence as of the date Customer's notice regarding the change of Customer's provider to Energy Solutions is deemed effective by the LDC, and shall continue for 12 months thereafter (the "Initial Term"). Upon completion of the Initial Term, this Agreement will automatically renew on a month-to-month basis at the same terms, unless Energy Solutions sends Customer written notice of proposed changes to such terms in advance of the renewal date (the "Renewal Term"). Any such written notice will be sent at least 30 days and no more than 60 days prior to the renewal date, apprising Customer of any proposed changes in the terms and conditions of this Agreement and of the Customer's right to renew, terminate or renegotiate this Agreement. If you wish to reject the renewal of this Agreement without incurring an early cancellation fee, if any, you will have three (3) business days from the day you receive the first billing statement of your Renewal Term to cancel by calling us at 631-465-2075. When receiving service on a month-to-month basis, the Customer may provide written notice of termination or call Energy Solutions at 1-877-494-3726 or call their delivery company to terminate the agreement. Energy Solutions may terminate this Agreement by providing 30 days' written notice to the Customer.
PRICE - The price for all natural gas sold under this Agreement shall include and be subject to all applicable taxes. Energy Solutions will invoice Customer monthly for natural gas delivered under this Agreement, as measured by the LDC, and Customer will pay each invoice in full within 20 days of the invoice date or be subject to a late payment charge of 1.5% per month. If Customer fails to pay each invoice in full within 20 days of the invoice date, then, in addition to any other remedies that it may have, Energy Solutions may terminate this Agreement upon 15 days written notice to Customer. For fixed price service if usage in any month exceeds the level of usage in the same month in the previous year by ten percent or more ("Base Load"), the Customer, at Energy Solutions' option, may be charged a variable price for all usage in excess of the Base Load and the fixed price for usage up to the Base Load. If the usage in any month falls by ten percent or more of the Base Load, the Customer will be charged the fixed price for all usage and shall be charged for hedging, cash out costs or balancing costs. BILLING - Customer may receive a single bill for both commodity and delivery costs from either Energy Solutions or the LDC, or each of the LDC and Energy Solutions may invoice Customer separately. Failure to make full payment of Energy Solutions charges due on any consolidated bill prepared by the LDC for Energy Solutions will be grounds for disconnection of utility services and commodity service in accordance with NYPSC rules and regulations on the termination of service. Customer payments remitted in response to a consolidated bill shall be pro-rated (when so required) in accordance with procedures adopted by the New York State Department of Public Service (the "DPS"). A $35 fee will be charged for all returned payments.
SERVICE - Energy Solutions will establish a natural gas transportation program for Customer with its LDC in accordance with the LDC's procedures. This may require Customer to enter into a transportation agreement under LDC's transportation service agreement. If requested, Energy Solutions will arrange for transportation of natural gas on Customer's behalf from the transfer point(s) to the respective LDC's City Gate. Customer authorizes Energy Solutions to act as Customer's designated agent for the arrangement for delivery and transportation of natural gas from transfer point(s) to the respective LDC's City Gate. Energy Solutions will act on Customer's behalf to provide coordination functions hereunder, including, but not limited to nominating, scheduling and balancing. Energy Solutions will supply Customer's full requirements for natural gas at all facilities listed in this Agreement on a firm basis, and will be responsible for any penalties imposed by the LDC for failure to deliver. Customer agrees to purchase all its natural gas requirements from Energy Solutions on a firm basis. DELIVERY POINT, TITLE AND TAXES - Energy Solutions will deliver Customer's natural gas supply to the transfer point where gas first enters the interstate pipeline. Title to, and risk of loss of the natural gas will pass from Energy Solutions to Customer at the transfer point(s). Energy Solutions warrants good title to the natural gas sold and delivered to Customer. If Customer requests, Energy Solutions will act as Customer's agent and arrange transportation of natural gas from transfer point(s) to the respective LDC's City Gate. Customer will be liable for and pay all taxes or surcharges, which are imposed with respect to the sale of natural gas. If Customer is exempt from such taxes, Customer is responsible for identifying and requesting any exemption from the collection of the taxes by filing appropriate documentation with Energy Solutions.
CONSUMER PROTECTION - The services provided by Energy Solutions to Customer are governed by the terms and conditions of this Agreement and HEFPA. Energy Solutions will provide at least 15 days' notice prior to the cancellation of service to Customer. Customer may obtain additional information by contacting Energy Solutions at 631-465-2075 or 1-877-494-3726 or the DPS at 1-888-697-7728, or by writing to the DPS at: New York State Department of Public Service, Office of Consumer Services, Three Empire State Plaza, Albany, New York 12223, or through its website at www.dps.state.ny.us.
CANCELLATION - Customer acknowledges that in the event of a cancellation or termination of this Agreement, it may take up to 10 weeks for Customer to return to the LDC for commodity supply service, and Customer is liable for all Energy Solutions charges until Customer's switch to the LDC or another supplier is effective. A final bill will be rendered within 45 days after the final scheduled meter reading by the LDC or if access is unavailable, an estimate of usage will be used for the final bill, which will be trued-up when the final meter reading is provided.
WARRANTY - This Agreement, including any enrollment form and applicable attachments, as written makes up the entire Agreement between Customer and Energy Solutions. Energy Solutions makes no representations or warranties other than those expressly set forth in this Agreement, and Energy Solutions expressly disclaims all other warranties, express or implied, including merchantability and fitness for a particular use.
FORCE MAJEURE - In the event that either party is rendered unable, wholly or in part, to perform that party's obligations under this Agreement due to events not reasonably anticipated or within either party's control, such as, but not limited to, acts of God, curtailment by Customer's LDC or Energy Solutions' transportation capacity, or Customer's LDC appropriation of natural gas, etc, the Parties agree that such non-performance shall be excused for the duration of the event which caused it. Should the parties have cause to claim force majeure, the claiming party will notify the other party, in writing, of the cause(s) of such event, the anticipated duration of non-performance and the remedies being taken to eliminate the cause. Financial obligations relating to payment for or delivery of natural gas under this Agreement cannot be cause for claiming force majeure and obligations cannot be excused as a result of a force majeure event.
LIABILITY - The remedy in any claim or suit by Customer against Energy Solutions will be solely limited to direct actual damages (which will not exceed the amount of Customer's single largest monthly invoice amount in the immediately preceding 12 months). All other remedies at law or in equity are hereby waived. In no event will either Energy Solutions or Customer be liable for consequential, incidental, indirect, special or punitive damages. These limitations apply without regard to the cause of any liability or damages. There are no third-party beneficiaries to this Agreement.
MEASUREMENT - Both parties agree hereto to accept for purposes of accounting for quantity, quality and measurement as those reported by the LDC.
DISPUTE RESOLUTION - In the event of a billing dispute or a disagreement involving Energy Solutions' service hereunder, the parties will use their best efforts to resolve the dispute. Customer should contact Energy Solutions by telephone or in writing as provided above. The dispute or complaint relating to a residential customer may be submitted by either party at any time to the DPS pursuant to its Complaint Handling Procedures ("Procedures") by calling the DPS at 1.800.342.3377 or by writing to the DPS at: New York State Department of Public Service, Office of Consumer Services, Three Empire State Plaza, Albany, New York 12223, or through its website at: www.dps.state.ny.us. Customer must pay the bill in full, except for the specific disputed amount, during the pendency of the dispute.
ASSIGNMENT - Customer may not assign its interests in and obligations under this Agreement without the express written consent of Energy Solutions. Energy Solutions may sell, transfer, pledge, or assign the accounts, revenues, or proceeds hereof, in connection with any financial agreement and may assign this Agreement to another energy supplier, energy services company or other entity as authorized by the DPS.
REGULATORY CHANGES - This Agreement is subject to present and future legislation, orders, rules, regulations or decisions of a duly constituted governmental authority having jurisdiction over this Agreement or the services to be provided hereunder. If at some future date there is a change in any law, rule, regulation or pricing structure whereby Energy Solutions is prevented, prohibited or frustrated from carrying out the terms of the Agreement, at its sole discretion Energy Solutions shall have the right to cancel this Agreement on 15 days notice to Customer.
INFORMATION RELEASE AUTHORIZATION - Customer authorizes Energy Solutions to obtain and review information regarding the Customer's credit history from credit reporting agencies, and the following information from the LDC: consumption history, billing determinant, credit information, public assistance status, existence of medical emergencies, status as to whether Buyer has a medical emergency, is human needs, elderly, blind or disabled and data applicable to cold weather periods under PSL 32 (3); and information pertaining to PSL 33, tax status and eligibility for economic development or other incentives. This information may be used by Energy Solutions to determine whether it will commence and/or continue to provide energy supply service to Customer and will not be disclosed to a third-party unless required by law. Customer's execution of this Agreement shall constitute authorization for the release of this information to Energy Solutions. This authorization will remain in effect during the Term of this Agreement or any renewal thereof. Customer may rescind this authorization at any time by providing written notice thereof to Energy Solutions or calling Energy Solutions at 1-877-494-3726. Energy Solutions reserves the right to cancel this Agreement in the event Customer rescinds the authorization.
CHOICE OF LAWS - Venue for any lawsuit brought to enforce any term or condition of this Agreement or to construe the terms hereof shall lie exclusively in the State of New York. This Agreement shall be construed under and shall be governed by the laws of the State of New York without regard to the application of its conflicts of law principles.
PARTIES BOUND - This Agreement is binding upon the parties hereto and their respective successors and legal assigns.
CONFIDENTIALITY - Customer agrees that for so long as this Agreement remains in effect and for a period of 2 years following termination of this Agreement, this Agreement and all pricing provided there under is commercially sensitive and shall not, unless required by law, be disclosed to any third party, or any Customer employee without a need to know, without the prior written consent of Energy Solutions.
[ close ]
Term: This Agreement will be in force for the term initially agreed upon (Primary Term), and will continue to be in force for subsequent one-year periods (Subsequent Term), unless terminated by either Party upon written notice, provided no later than 15 days prior to the expiration of the Initial Term or Subsequent Term then in effect. SELLER reserves the right to adjust the Contract Price for subsequent contract terms.
Payment: SELLER will bill BUYER for gas delivered to the LDC City Gate according to --the consumption information that SELLER receives from BUYER'S LDC. Payment is due on receipt of the bill. If payment is not received on a timely basis, SELLER may, after 15 days written notice, sus-pend performance, but BUYER will still remain obligated under this contract. BUYER agrees to pay interest on late payments at the rate of 1.5% per month (18% per annum) and to pay SELLER's reasonable attorney's fees and expenses incurred in collecting payment.
Consumer Protection: You may obtain additional information by contacting SELLER at 1-877-494-ESCO (3726) or by writing to the DPS at: New York State Department of Public Service, Office of Consumer Services, Three Empire State Plaza, Albany, New York 12223, or through its website at http://www.dps.state.ny.us.
Title: BUYER and SELLER agree that title and risk of loss of the gas sold under this Agreement will transfer from SELLER to BUYER at the sales point(s).
Transportation: SELLER agrees to transport gas to the sales point(s). SELLER will arrange for transportation from the sales point(s) to the deliv-ery point(s) as BUYER'S agent. BUYER will receive a separate bill from BUYER'S LDC for transporting gas from the delivery point(s) to BUYER'S meter(s).
Taxes and Laws: BUYER is responsible for paying all applicable taxes. If BUYER is tax exempt, BUYER must furnish SELLER an exemption certificate be-fore service commences. This Agreement is subject to all local, state and federal laws, and regulations of governmental agencies having jurisdiction over such services.
Emergency Service: In the event of an energy emergency or service interruption, you should immediately call emergency personnel and your local utility at the following numbers: Keyspan (800) 490-0045 - Con Ed (800) 752-6633
Disputes: In the event of a billing dispute or a disagreement involving SELLER's service, the parties will use their best efforts to resolve the dispute.
For Non Residential customers, the Department of Public Service will not resolve their disputes. The DPS will monitor complaints against all energy companies, and an excessive number of complaints may result in an energy company no longer being eligible to supply electricity or natural gas in New York State. Disputes not resolved within 60 days may be submitted for resolution in small claims court or, if the dollar amount of the dispute exceeds small claims court juris-dic-tion, submit the dispute to final, binding arbitration by a single arbitrator pursuant to the Commercial Arbitration Rules of the American Ar-bitration Association. BUYER shall remit full payment except for the disputed amount while the dispute is pending. The alternative energy provider line for inquiries is 1-888-697-7728; and complaints is 1-800-342-3377.
Liability: In no event shall either party be liable for any punitive, incidental, consequential, exemplary, indirect, third-party claims or other damages whether based on contract, warranty, tort, negligence, strict liability or otherwise, or for lost profits arising from a breach of this Agreement.
Force Majeure: Neither SELLER nor BUYER will be liable for breaching this contract if the breach is due to a material, unavoidable occurrence beyond the party's control. This does not include inability to pay. Each party will notify the other promptly upon learning of the Force Majeure condition.
Severance: If any provision of this Agreement is held by a court or regulatory agency of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions shall continue in full force without being invalidated in any way.
No Warranties: Unless otherwise expressly set forth in this Agreement, SELLER provides and Customer receives no warranties, express or implied, statutory, or otherwise and SELLER specifically disclaims any warranty of merchantability or fitness for a particular purpose.
Delay or Failure to Exercise Rights: No partial performance, delay or failure on the part of SELLER in exercising any rights under this Agreement and no partial or single exercise thereof shall constitute a waiver of such rights or of any other rights hereunder
Assignment: BUYER may not assign this contract without SELLER's consent. This Agreement will inure to and be binding upon the successors and assignees of the Parties. This contract is governed by New York State law and can only be amended in writing. This contract is the entire understanding between BUYER and SELLER; no oral statements are effective. SELLER may sell, transfer, pledge, or assign the accounts, revenues, or proceeds hereof, in connection with any financial agreement and may assign this Agreement to another energy supplier, energy services company or other entity in accordance with the NYDPS rules and procedures, if any, governing such transactions.
Entire Agreement: This Agreement sets forth the entire agreement between the parties with respect to the terms and conditions of this transaction; any and all other agreements, understandings and representations by and between the parties with respect to the matters addressed herein and therein are superseded by this Agreement.
Version 3.01 - 01/09
[ close ]
