Terms and Conditions

Customer Disclosure Statement

This Customer Disclosure Statement summarizes the key commercial terms of your service agreement with Buy Energy Direct LLC. Each customer’s executed Disclosure Statement reflects the specific terms agreed at enrollment. The fields below describe what is disclosed; the values for your account appear on the executed Disclosure Statement provided with your fully signed Agreement.

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 LDC continues to deliver the natural gas and/or electricity supplied by Seller and is responsible for service, outages, and emergencies. 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. This Agreement is 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 provider to Seller is deemed effective by the LDC, and shall continue for the number of months stated on the executed Disclosure Statement (the “Initial Term”). Upon completion of the Initial Term, the Agreement will automatically renew on a month-to-month basis at the terms specified in a renewal notice sent to Customer at least 30 and no more than 60 days prior to the renewal date (the “Renewal Term”). When receiving service on a month-to-month basis, Customer may cancel without any charge by providing written notice of termination or by calling Seller at (212) 680-4253 or 1-877-799-3637 (toll-free). Seller may terminate this Agreement by providing 30 days’ written notice to Customer.

Price and Termination

The price for all natural gas and electricity sold under this Agreement covers commodity supply only and shall include all applicable taxes. Local distribution utility delivery charges, taxes, surcharges, and other utility-billed amounts apply separately and are not included in Seller’s price. Seller will invoice Customer monthly for natural gas and/or electricity delivered under this Agreement, as measured by the LDC. 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, Seller may, in addition to any other remedies available to it, 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 between 10% and 25% (the “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 contracted price for usage up to the Base Load. If usage in any month falls by 10% or more below the Base Load, the Customer will be charged the contracted price for all usage and may be charged for related hedging, cash-out, or balancing costs. If Customer terminates this Agreement prior to the end of the Initial Term or any Renewal Term, or if Seller terminates as a result of Customer’s breach, and the Agreement is for Fixed-rate or Index-rate service, Customer shall pay an Early Termination Fee equal to the projected commodity volume for the remainder of the then-current Term multiplied by the difference between the contracted rate and the market price at which Seller can resell the commodity following termination, plus Seller’s reasonable resale and administrative expenses. Savings are not guaranteed.

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’s charges due on any consolidated bill prepared by the LDC for Seller may 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 the LDC is unable to read Customer’s meter, the LDC will estimate the charges based on previous usage history and later adjust based on actual usage shown by a meter reading; Seller shall make a corresponding adjustment to Customer’s bill. If at any point the LDC adjusts monthly volumes or performs cancel/rebills, or if Seller finds errors in previously billed amounts up to 24 months after the 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 reasonable collection fees incurred while collecting Customer’s outstanding invoices, as well as the Early Termination Fee described above in 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 the 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 of 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 of 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 may be 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 amounts will be separately stated on Customer’s bill, unless prior to execution of this Agreement Customer has provided Seller a valid applicable tax exemption certificate.

Consumer Protection

The services provided by Seller to Customer are governed by the terms and conditions of this Agreement and by the New York State Public Service Commission’s 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 (212) 680-4253 or 1-877-799-3637 (toll-free), or by contacting 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 dps.ny.gov. The New York ESCO Consumer Bill of Rights is available at https://dps.ny.gov/esco-consumer-bill-rights.

Effect of 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 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; 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 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’s transportation capacity, or any other cause beyond Seller’s reasonable 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 hereto agree to accept, for purposes of accounting for quantity, quality, and measurement, those values reported by the LDC.

Dispute Resolution; Arbitration; Class-Action Waiver

In the event of a billing dispute or a disagreement involving Seller’s service, Customer should first contact Seller’s Customer Service Center as provided below. 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. The DPS generally does not resolve non-residential commercial billing disputes; however, Customer may still file a complaint with the DPS Office of Consumer Services at 1-888-697-7728 or dps.ny.gov.

Subject to the small-claims carve-out and the opt-out right described below, any controversy or claim arising from this Agreement, or the breach thereof, shall be settled by binding arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules; judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction. Either party may bring an individual claim within the jurisdictional limit of small-claims court in lieu of arbitration. THE PARTIES AGREE THAT NO PROCEEDINGS HEREUNDER SHALL BE CERTIFIED AS A CLASS ACTION OR PROCEED AS A CLASS ACTION OR BE JOINED IN ANY WAY WITH ANY OTHER PROCEEDING. Customer may opt out of this arbitration provision by sending written notice to Seller at the address below within 30 days of the effective date of this Agreement; opting out does not affect any other provision of the Agreement.

Assignment

Customer may not assign its interests in or delegate its obligations under this Agreement without the express written consent of Seller. Seller may sell, transfer, pledge, or assign the accounts, accounts receivable, 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 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 to Seller or by calling Seller at (212) 680-4253 or 1-877-799-3637 (toll-free). Seller reserves the right to cancel this Agreement in the event Customer rescinds the authorization.

Contact Information

Customer may contact Seller’s Service Contact Center at (212) 680-4253 or 1-877-799-3637 (toll-free), Monday through Friday, 9:00 a.m. – 5:00 p.m. ET (contact center hours subject to change), or by email at support@buyenergydirect.org. Customer may write to Seller at: Buy Energy Direct LLC, 68 35th Street, Suite B640, Brooklyn, NY 11223. Customer may also contact the DPS for inquiries regarding the competitive retail energy market at 1-888-697-7728. Customer acknowledges that, where Customer has provided an email address, Seller may send communications by email to that address; if Customer does not consent to receive communications by email, Customer may contact Seller’s customer service at the contact information above to request alternative delivery.

Regulatory and Material Changes

The Contract Price is established in reliance on the existing regulations, legislation, orders, laws, rates, charges, forecasts, market designs, capacity and tariff-based obligations, and other protocols set forth by governmental authorities, Independent System Operators (ISOs) and their 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 (each, a “Regulatory Authority”). If any future change 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), or any change in the manner in which any Regulatory Authority implements or interprets any of the foregoing, directly increases Seller’s documented costs of providing service under this Agreement (a “Regulatory Change”), Seller may pass through to Customer the actual incremental cost — without markup — by providing Customer at least thirty (30) calendar days’ written notice describing the Regulatory Change and the resulting cost increase. Customer may terminate this Agreement, without payment of any Early Termination Fee, by providing Seller with written notice within thirty (30) days of receiving Seller’s notice of the change. If Customer does not so terminate within that thirty-day window, the change takes effect at the end of the notice period. Seller shall not unilaterally re-price this Agreement based on changes in market conditions, load factor, capacity tags, weather patterns, or other commercial factors that do not constitute a Regulatory Change as defined above.

Outages, Utility Interruptions and Monitoring

Outages: Customer is solely responsible for notifying Seller of any change(s) or event(s) that might affect Customer’s ability to receive supply, including 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’s inquiries regarding 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 of the above provisions shall result in a transfer to 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 Agreement. 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

Buy Energy Direct does not respond to outages or emergencies. The LDC continues to deliver energy and respond to all service emergencies. In the event of a gas leak, service interruption, or other emergency, Customer should immediately call their LDC and emergency personnel. For Con Edison customers: call 1-800-752-6633 for electric or gas emergencies. For customers in other New York LDC territories where Seller may operate: Central Hudson 845-452-2700 (electric) or 800-942-8274 (gas); National Grid 800-867-5222 (Upstate electric), 800-892-2345 (Upstate gas), 718-643-4050 (KEDNY gas), 800-490-0045 (Long Island gas); NYSEG 800-572-1111; Orange and Rockland 877-434-4100 (electric) or 800-533-5325 (gas); RG&E 800-743-1701 (electric) or 800-743-1702 (gas).

Choice of Law; Venue

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

Acceptance of this Agreement does not constitute consent to receive marketing calls or text messages. Seller may contact Customer by phone, email, or mail solely for purposes of administering this Agreement — including account servicing, billing, service, renewal, and other Agreement-related communications — at the contact information Customer provides. Marketing calls and text messages, including any made or sent using automated technology or pre-recorded voice, will only be made or sent to Customer where Customer has separately and affirmatively opted in to such communications. Marketing consent is never a condition of service. Customer may revoke marketing consent at any time by contacting Seller at support@buyenergydirect.org, (212) 680-4253, or 1-877-799-3637 (toll-free).

Communications with Customer

Customer agrees to accept all notifications related to this Agreement by email at the email address provided at the time of enrollment, or subsequently provided to Seller. Customer acknowledges that Seller may send communications to Customer at that email address. If Customer does not consent to receive communications by email, Customer may contact Seller at the information above. Customer agrees and acknowledges that the information associated with the Account(s) hereunder, including but not limited to usage data, the LDC-issued account numbers, service address, and any other such information contained in this Agreement, are not considered confidential or specially protected information for purposes of email transmission. Therefore, Seller is authorized to send unencrypted email messages to Customer and/or Customer’s authorized agent or representative, which messages 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 its termination, this Agreement and all pricing provided hereunder is commercially sensitive and shall not, unless required by law, be disclosed to any third party or unauthorized employee without the 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 (the “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 Seller under this Agreement, but delivery will be provided by the LDC; and (e) the LDC, and not ESCO, is responsible for responding to service problems or emergencies should they occur.