Agreement to Sell and Purchase Energy
This is an Agreement between Buy Energy Direct LLC (“ESCO” or “Seller”), an independent energy services company, and the undersigned customer (“Customer”) under which Customer shall initiate natural gas and/or electricity service and begin enrollment with Seller (the “Agreement”). Subject to the terms and conditions of this Agreement, Seller agrees to sell and facilitate delivery, and Customer agrees to purchase and accept the quantity of natural gas and/or electricity, as estimated by Seller, necessary to meet Customer’s requirements based upon consumption data obtained by Seller or the delivery schedule of the Local Distribution Company (the “LDC”). Seller is not affiliated with and does not represent the LDC. The amount of natural gas and/or electricity delivered under this Agreement is subject to change based upon data reflecting Customer’s consumption obtained by Seller or the LDC’s delivery schedule. The LDC will continue to deliver the natural gas and/or electricity supplied by Seller. This Agreement shall be applicable to non-residential customers, who have at least one demand meter for electric service and/or whose aggregated natural gas annual consumption is greater than 750 dekatherms (DTH), or equivalent.
Term
This Agreement shall commence as of the date Customer’s notice regarding the change of Customer’s provider to Seller is deemed effective by the LDC, and shall continue for 12 month(s) thereafter (the “Initial Term”). Upon completion of the Initial Term, a Agreement will automatically renew on a month-to-month basis at the same terms, unless Seller sends Customer written notice of proposed changes to such terms in advance of the renewal date (the “Renewal Term”). For fixed rate product, a 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. When receiving service on a month-to-month basis, the Customer may cancel without any charges by providing written notice of termination or calling Seller at 1-877-799-3637 (toll-free) 929-506-1026. Seller may terminate this Agreement by providing 30 days’ written notice to the Customer.
Price and Termination
The price for all natural gas and electricity sold under this Agreement shall include and be subject to all applicable taxes. Seller will invoice Customer monthly for natural gas and/or electricity 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, Seller may terminate this Agreement upon 15 days written notice to Customer. For fixed rate and index rate products, if usage in any month exceeds the level of usage in the same month in the previous year by 10-25% percent or more (“Base Load”), the Customer, at Seller ’s 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. If Customer terminates this Agreement prior to the end of the Initial or Renewal Term, or if Seller terminates as a result of Customer breach, and the Agreement is for fixed rate or index rate service, then the customer shall pay, in addition to any other applicable charges, a cancellation fee equivalent to the multiplication of the projected amount of natural gas and/or electricity to be consumed by you for the remainder of the current Term multiplied by the difference between the rate in effect for the remainder of the current Term and the price at which Seller can sell such gas and/or electricity following termination, plus Seller’s related expenses.
Billing
Customer may receive a single bill for both commodity and delivery costs from either Seller or the LDC, or each of the LDC and Seller may invoice Customer separately. Failure to make full payment of Seller charges due on any consolidated bill prepared by the LDC for Seller will be grounds for disconnection of utility services and commodity service in accordance with NYPSC rules and regulations on the termination of service to non-residential customers, 16 NYCRR Section 13.3. 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 $40 fee will be charged for all returned payments. Customer bills will be based on utility meter readings. If LDC is unable to read Customer’s meter, the LDC will estimate the charges based on previous usage history, and later adjust it based on actual usage shown by a meter reading. Seller shall make a similar adjustment to Customer’s bill. If at any point, the LDC adjusts monthly volumes and/or performs cancel/rebills, or if Seller finds errors in previously billed amounts up to 24 months after to issuance of the incorrect bill, Seller shall have the right to recalculate Customer’s costs and issue a corrected invoice, via the LDC or separately. Customer shall reimburse Seller for any collection fees incurred while collecting Customer’s outstanding invoices, as well as the Early Termination Fee described in Section 3, of this Agreement the event of a removal of Customer’s account(s) from the consolidated billing program by the LDC for any reason.
Agency; Service
Seller will establish a natural gas and electricity 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, Seller will arrange for transportation of natural gas and/or electricity on Customer’s behalf from the transfer point(s) to the respective LDC’s City Gate. Customer authorizes Seller to act as Customer’s designated agent for the arrangement for delivery and transportation of natural gas and/or electricity from transfer point(s) to the respective LDC’s City Gate. Seller will act on Customer’s behalf to provide coordination functions hereunder, including, but not limited to nominating, scheduling, and balancing. Seller will supply Customer’s full requirements for natural gas and/or electricity 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 and/or electricity requirements from Seller on a firm basis.
Delivery Point, Title and Taxes
ESCO will deliver Customer’s natural gas supply to the transfer point where gas first enters the interstate pipeline. Unless Seller notifies Customer otherwise, title to control of and risk of loss of the commodity sold hereunder shall pass from Seller to Customer at the transfer point(s). Customer is responsible for any transfer, sales or other taxes and related charges (other than gross receipt taxes which are included in the per unit of measure (“UOM”) price charged; UOM maybe presented as kWh or therm) however, designated, that are imposed upon the transfer of title or the transporting or delivering of Customer’s commodity, and such amount will be separately stated on Customer’s bill, unless prior to execution of this Agreement, Customer has provided to Seller an applicable, valid tax exemption certificate.
Consumer Protection
The services provided by Sellerto Customer are governed by the terms and conditions of this Agreement, and the New York State Public Service Commission rules and regulations (“Orders”), including the Uniform Business Practices (“UBP”) and other applicable requirements. Seller will provide at least 15 days’ notice prior to the cancellation of service to Customer. Customer may obtain additional information by contacting Seller at 1-877-799- 3637 (toll-free) 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.ny.gov.
Effect of Cancellation
Customer acknowledgesthatin the event of a cancellation ortermination ofthisAgreement, it may take up to 10 weeksfor Customer to return to the LDC for commodity supply service, and Customer isliable for all Seller 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 Seller. Seller makes no representations or warranties other than those expressly set forth in this Agreement, and Seller expressly disclaims all other warranties, express or implied, including merchantability and fitness for a particular use.
Force Majeure
Seller will make commercially reasonable efforts to provide natural gas and/or electricity hereunder but Seller does not guarantee a continuous supply of natural gas and/or electricity to Customer. Certain causes and events out of the control of Seller (“Force Majeure Events”) may result in interruptions in service. 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, Seller will not be liable for any interruptions caused by a Force Majeure Event, and Seller is not and shall not be liable for damages caused by Force Majeure Events. Force Majeure Events shall is not and shall not be liable for damages caused by Force Majeure Events. Force Majeure Events shall include acts of God, fire, flood, storm, terrorism, war, civil disturbance, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis including quarantine or other employee restrictions, accidents, strikes, labor disputes or problems, required maintenance work, inability to access the local distribution utility system, curtailment by Customer’s LDC or Seller transportation capacity, or any other cause beyond Seller’s control.
Liability
The remedy in any claim or suit by Customer against Seller 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 Seller 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, Agreement to Arbitrate and Class Action Waver
In the event of a billing dispute or a disagreement involving Seller ’s service, Customer should contact Seller ’s Customer Service Center as provided above. Customer must pay the bill in full, except for the specific disputed amount, during the pendency of the dispute. If the parties cannot resolve the dispute within 45 days, either party may avail itself of all remedies available under law or equity. Any controversy or claim arising from this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgement on the award rendered by the arbitrator(s) shall be entered in any court having jurisdiction thereof. THE PARTIES AGREE THAT NO PROCEEDINGS HEREUNDER SHALL BE CERTIFIED AS CLASS ACTION OR PROCEED AS CLASS ACTION OR JOINED IN ANY WAY WITH ANY OTHER PROCEEDING. The DPS will not resolve non-residential disputes associated with the services provided under this Sales Agreement. Retail Access inquiries can be made at the DPS Office of Consumer Services, New York State Public Service Commission,Office of Consumer Services, Three Empire State Plaza, Albany, New York 12223; 888-697-7728.
Assignment
Customer may not assign its interests in and delegate its obligations under this Agreement without the express written consent of Seller. Seller may sell, transfer, pledge, or assign the accounts, accountsreceivable,revenues, or proceeds hereof, in connection with any financing agreement, billing services agreement or receivables purchase program, and may assign this Agreement and the rights and obligations hereunder to another energy supplier, energy services company or other entity as authorized by the DPS, upon thirty (30) days’ written notice to Customer.
Information Release Authorization
Customer authorizes Seller 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 determinants, credit information, tax status and eligibility for economic development or other incentives. This information may be used by Seller 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 Seller. This authorization will remain in effect during the Initial Term and any Renewal Term. Customer may rescind this authorization at any time by providing written notice thereof to Seller or by calling Seller at 1-877-799-3637 (toll-free).Seller reserves the right to cancel this Agreement in the event Customerrescindsthe authorization.
Contact Information
Customer may contact Seller’s Service Contact Center at 1-877-799-3637 (toll-free), Monday through Friday, 9:00 a.m. – 5:00 p.m. EST (contact center hours subject to change). Customer may write to Seller at: 8747 20th Avenue, Brooklyn, NY 11214. You may also contact the DPS for inquiries regarding the competitive retail energy market at 1-888-697-7728. Customer acknowledges that all communications from Seller will be via email, at the Customer’s email address provided on the disclosure page. If Customer does not consent to receive communications by email, Customer may contact Seller’s customer service at the above contact information.
Regulatory and Material Changes
The Contract Price is established in reliance on the existing regulations, legislations, orders, laws, rates, charges, forecasts, market designs, capacity and tariff-based obligations, and other protocols set forth by governmental authorities, Independent System Operators (ISO) and its committees, LDCs, pipelines, State Agencies and other Entities having jurisdiction over this Agreement or the services to be provided hereunder, in effect as of the execution date of this Agreement. If at some future changes to any law, rule, regulation, forecast, generation capacity or transmission allotment, pipeline capacity or storage allotment, tariff or regulatory structure including changes in reliability and environmental requirements (“Regulatory Change”), which impacts any term, condition or provision of this Agreement including, but not limited to price or, if there is a change to the manner in which any transporter, LDC, EDC, pipeline, NYISO agency or any other authority implements or interprets any law, rule, regulation, tariff, or regulatory structure that increases Seller’s costs, Seller shall have the right to modify this Agreement and pass through such coststo Customer with additional mark-up as a reflection ofsuch Regulatory Change, by providing written notice of such modification to the Customer 15 calendar days prior to effectuating the change. The rate of this Agreement may be adjusted if material changes affecting the overall economic value of this Agreement occur. Material changes are change in economic conditions outside of commercially reasonable control of Seller and include but are not limited to load factor, peak day allocations, capacity tags, POR percentage increases, heat factor allocations, abrupt change in weather patterns and other change in conditions deemed outside of Seller’s control.
Outages, Utility Interruptions and Monitoring
Outages: Customer is solely responsible for notifying Seller of any and all change(s) or event(s) that might affect Customer’s ability to receive supply. This includes both planned and unplanned outages. Notification must occur as soon as Customer knows or should have known about any such change(s) or event(s).
- Utility Interruptions: For interruptions initiated by the LDC, Customer must adhere to the standards of service required under the applicable LDC’s tariff and complete shut down and/or switch to an alternative fuel, as required by the tariff.
- Monitoring of Usage:
- Daily Balanced Customers: Daily Balanced Customers are responsible for ensuring that the proper telemetry is operational and able to provide information about Customer’s daily usage pattern. In addition, Customer must always have personnel available to respond to Seller’sinquiriesregarding daily customer usage.
- Interruptible (Non-Firm) Customers: Interruptible (Non-Firm) Customers must maintain telemetry consistent with the requirements of the LDC’s tariff and have personnel available 24-hours in advance of and during LDC-initiated interruptions to respond to Seller’s inquiries regarding daily customer usage.
- Time of Use Customers: Customers receiving service under time differentiated rates must adhere to the telemetry requirements of the LDC.
Failure to comply with any ofthe above provisionsshallresult in a transferto Customer of all costs, penalties and interest incurred by Seller to provide service and/or Termination of this Agreement. In addition, any decrease in usage resulting from a planned or unplanned outage will not relieve Customer of charges under the Price Provision of this contract. Should Seller terminate this Agreement, Customer will be responsible to pay all charges incurred by Seller to provide service for periods up to the end of energy flow plus all unrecovered costs caused by the Termination of the Agreement.
Emergency Service
The LDC will continue to respond to outages and emergencies. In the event of a gas leak, service interruption or other emergency, Customer should immediately call their LDC at Central Hudson at 845-452-2700 (electricity) and 800-942-8274 (natural gas); Con Edison at 800-752-6633; National Grid at 800-867-5222 (Upstate –electricity), 800-892-2345 (Upstate – natural gas), 718-643-4050 (KEDNY – natural gas), and 800-490-0045 (Long Island – natural gas); NYSEG at 800-572-1111; Orange and Rockland at 877-434-4100 (electricity) and 800-533-5325 (natural gas); RG&E at 800-743-1701 (electricity) and 800-743-1702 (natural gas), and emergency personnel.
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. Customer and Seller have caused this Agreement to be executed as of the date noted above on the first page of this Agreement, by individuals authorized to bind each party, and Customer has reviewed all of the terms herein.
Telephone Communication
By accepting this Agreement, you consent to receive calls and/or text messages for any purpose, including with marketing offers and other information, from Seller, its affiliates and/or assigns, at the telephone number(s) you provide to Seller, its affiliates and/or assigns, possibly through the use of automated technology or pre-recorded voice. You agree that this consent survives the termination of your contract and that your consent to receive marketing communications is not a condition of purchase and may be revoked at any time.
Communications with Customer
Customer agrees to accept all notifications by email to the email address provided at time of enrollment, or subsequently provided to ESCO. Customer acknowledges that Seller may send communications to Customer at the Customer’s email address provided by the Customer on the disclosure page. If Customer does not consent to receive communications by email, Customer may contact Seller at the information provided above. Customer agrees and acknowledges that the information associated with the Account(s) hereunder, including but not limited to usage data, the Local Utility issued account numbers, service address and any other such information contained in this Agreement are not considered confidential or protected information. Therefore, Seller is authorized to send unencrypted email messages to Customer and/or Customer’s authorized agent or representative which email may include a copy of this Agreement or other Account-related information necessary for Seller to perform its obligations under this Agreement.
Confidentiality
Customer agrees that for so long as this Agreement remains in effect and for a period of two (2) years following termination of this Agreement, this Agreement and all pricing provided thereunder is commercially sensitive and shall not, unless required by law, be disclosed to any third party, or unauthorized employee, without prior consent of Seller.
Forward Contract
Each Party acknowledges that: (a) this Agreement is a forward contract and a master netting agreement as defined in the United States Bankruptcy Code (“Code”); (b) this Agreement shall not be construed as creating an association, trust, partnership, or joint venture in any way between the Parties, nor as creating any relationship between the Parties other than that of independent contractors for the sale and purchase of Commodities; (c) ESCO is not a “Utility” as defined in the Code; (d) Commodity supply will be provided by Supplier under this Agreement, but delivery will be provided by the Utility; and (e) the Utility, and not ESCO, is responsible for responding to service problems or emergencies should they occur.