1. PROPANE AND EQUIPMENT: Customer agrees to purchase all requirements for LP-Gas (“Propane”) from Taylor Gas Company, Inc. Seller shall lease, maintain (and install when necessary) at the Delivery Address Taylor Gas Company, Inc.-owned storage tanks, regulators and/or meters as is necessary for Propane service, including, but not limited to, such items identified in any Taylor Gas Company, Inc. work order or other Taylor Gas Company, Inc. records (“Equipment”). Seller may replace, add or adjust Equipment if necessary in Seller’s judgment or as requested by Customer, which items shall also be regarded as “Equipment” hereunder. Title to Equipment shall remain with Taylor Gas Company, Inc. at all times and shall not pass to Customer(unless purchased from Taylor Gas Company), any subsequent purchaser of the Delivery Address or other third party (including creditors). Equipment shall not become fixtures notwithstanding the manner in which it is affixed to property. Customer warrants that he/she has the legal right and Landowner’s consent, if applicable, to have the Equipment installed and used at the Delivery Address for the duration of this Agreement. Customer agrees that only Taylor Gas Company, Inc. and its authorized representatives shall deliver Propane to, and have contact with, the Equipment. Title to any exterior and/or interior propane piping installed by Taylor Gas Company, Inc. is hereby conveyed to Customer. Customer is responsible for proper grounding/bonding of propane piping, shall arrange for protection of regulators from the elements and, where applicable, for protection of piping and equipment from the forces of accumulated snow/ice.
2. PRICE AND FEES: As compensation for Taylor Gas Company, Inc.’s (i) supply to Customer of Propane, (ii) lease to Customer of the Equipment, and (iii) provision to Customer of other services incidental thereto, Customer agrees to pay to Taylor Gas Company, Inc. (a) Taylor Gas Company, Inc.’s per gallon price for Propane applicable to Customer on the date of delivery/meter read (“Price”), and (b) Taylor Gas Company, Inc.’s applicable fees and charges (“Fees” or “Charges”) in effect on the date of billing. Customer understands and agrees that, unless otherwise stated by Taylor Gas Company, Inc. in writing, any Price quoted by Taylor Gas Company, Inc. on or prior to the Agreement Date applies only to Customer’s first delivery of Propane and that Customer’s Price for subsequent deliveries of Propane could vary with each such delivery. Customer also understands and agrees that the Price Customer will pay for each delivery is dependent on a number of different factors, which will vary over time, including, but not limited to, the direct and indirect costs incurred by Taylor Gas Company, Inc. to acquire, store and deliver the Propane sold to Customer, the volume of Propane purchased by Customer and prevailing conditions. Because of this variability in Price, Customer acknowledges that the Price paid by Customer for any delivery of Propane may be different from (A) the Price charged to Customer for an earlier or later delivery of Propane, (B) the price charged at any time to other purchasers of Propane by Taylor Gas Company, Inc. or any other company, or (C) any published price index. The initial amounts of Fees to be charged to Customer include: SECURITY DEPOSIT: Subject to credit approval FUEL SURCHARGE: $9.95 per delivery MINIMUM ANNUAL USE REQUIREMENT: 1 ½ tank capacity annually; under minimum annual use subject to tank rental fee TANK RENTAL FEE IF APPLICABLE: $85.00 Annually INSTALLATION FEE: $Based on depreciation at time of termination *Payable if Customer terminates this Agreement prior to initial term as agreed upon damages and not as a penalty. All prices and fees are subject to change. Taylor Gas Company, Inc. may also charge other Fees, including, but not limited to, a Transportation Fuel Surcharge Fee, Emergency/Special Delivery Fee and the Fees set forth elsewhere in this Agreement. Fees may be based on Propane gallons delivered to Customer or on other bases, including, but not limited to, a per Delivery basis or a periodic basis. The Safety Practices & Training Fee is charged to recover some of Taylor Gas Company, Inc.’s safety related costs including, but not limited to, in connection with Taylor Gas Company, Inc.’s own vehicle and facility inspections as well as Taylor Gas Company, Inc.’s employee training and testing. Customer understands and agrees that the specific Fees charged and the amount of those Fees may vary over time. Customer acknowledges and agrees that itemization of Price and Fees on Taylor Gas Company, Inc.’s Delivery Invoice, Delivery Notice or Statement will be sufficient and adequate notice to Customer of those Price and Fees and that Taylor Gas Company, Inc. is not required to provide Customer with additional notice of, or prior notice of changes to, Price and/or the amount or nature of Fees. Customer may obtain information about Taylor Gas Company, Inc.’s current Price and Fees applicable to Customer from Taylor Gas Company, Inc.’s local office, and a description of Taylor Gas Company, Inc.’s Fees can be found online at www.taylorgascompany.com/fees.
3. PROPANE USAGE AT DELIVERY ADDRESS: Customer shall notify Taylor Gas Company, Inc.: a) of changes in fuel consumption that may require adjustment of volume and/or frequency of fuel deliveries; b) of any change in occupancy of the Delivery Address at least five days prior thereto; and c) before any propane-fueled unit or appliance at the Delivery Address is to be connected, disconnected or replaced, and before start-up of seasonal equipment.
4. TERM OF AGREEMENT: This Agreement shall continue for one (1) year from the Agreement Date (“initial term”) and thereafter shall automatically renew annually unless terminated at the end of the initial term or a subsequent anniversary date by Taylor Gas Company, Inc. or Customer upon not less than thirty (30) days prior written notice to the other party at the address set forth above. If during the term of this Agreement, Customer shall purchase Propane from a supplier other than from Taylor Gas Company, Inc., Taylor Gas Company, Inc. may elect to terminate this Agreement for Customer’s breach. Either party can terminate this Agreement immediately upon a default by the other. This Agreement may be terminated by Taylor Gas Company, Inc. for health and/or safety reasons. Taylor Gas Company, Inc.’s right to collect Late Payment Charges shall not prohibit or restrict it from declaring a payment default and terminating this Agreement.
5. PAYMENT TERMS AND POLICY; SECURITY DEPOSITS: A Delivery Invoice may be left at the Customer’s location even if Customer is not present at the time of delivery. Payment in full is due upon the earlier of the Customer’s receipt of Taylor Gas Company’s Invoice or monthly Statement. Taylor Gas Company may suspend Propane delivery, and disconnect Equipment, without further notice, if the account balance is not paid in full within thirty (30) days of the delivery date. Reconnection of Equipment after a suspension is subject to a Reconnection Charge. A Late Payment Charge will be assessed on any balance not paid within thirty (30) days of the delivery date. The Late Payment Charge will be calculated based upon an interest rate of 24% per annum or the maximum amount permitted by law, whichever is lower, on the overdue or average daily balance beginning from the earlier of the Invoice date or Statement date. If Customer’s credit shall for any cause be deemed unsatisfactory by Taylor Gas Company, Taylor Gas Company shall have the right to require payment in advance before making further deliveries. Title to Propane shall transfer from Taylor Gas Company to Customer (or owner of metered tank) upon delivery. Security Deposits shall not earn interest unless required by law.
6. SAFETY: Customer agrees to provide occupants of the Delivery Address and all end users of the Propane sold hereunder with safety information provided by Taylor Gas Company. For additional safety information, including natural disaster/weather-related warnings, visit www.taylorgascompany.com or call 1-855-764-4427. Customer shall ensure that all end users are familiar with the odor of Propane, and acknowledges that Taylor Gas Company recommends the installation of UL-listed Propane gas detectors and carbon monoxide detectors in basements, and elsewhere as recommended by the manufacturer, to provide an additional warning of the presence of Propane or carbon monoxide.
7. MAINTENANCE; ACCESS; SERVICE: Customer agrees that no service, connections, disconnections or the like will be made to Equipment except by Taylor Gas Company’s employees, affiliates or authorized representatives. Customer shall at all times provide Taylor Gas Company with unobstructed access (without risk or liability for trespass) to deliver to, service, change or remove Equipment. If access across a Customer-owned bridge is required, Customer shall, as a condition precedent to Taylor Gas Company’s obligations, satisfy Taylor Gas Company that the bridge will safely accommodate the weight of the delivery vehicle. Customer shall not tamper with Equipment and shall not move it from its original installation location, or part with its possession or encumber the Equipment in any way. Taylor Gas Company may disconnect any appliance or Equipment, regardless of ownership, deemed by Taylor Gas Company to be unsafe. Customer shall surrender Equipment upon any termination of this Agreement in the same condition as received, normal wear accepted. Customer further agrees to notify Taylor Gas Company immediately, both orally and in writing, of any apparent Equipment malfunction. Customer agrees to pay for any diagnostic or service work and parts provided by Taylor Gas Company for Customer-owned equipment, if offered, in accordance with mutually agreed upon labor rates and parts charges.
8. TERMINATION: Customer hereby agrees that upon termination of this Agreement, Taylor Gas Company shall have the absolute right to remove its Equipment without notice or process of law, and Taylor Gas Company shall not be liable for any injury or damage to the Delivery Address property in connection with Equipment removal. Upon termination of this Agreement not resulting from a default by Taylor Gas Company, Customer agrees to pay to Taylor Gas Company applicable Restocking (Pump Out) Fees, Closeout (Tank Pickup) Fees and other Fees relating to termination of service.
9. RELEASE AND INDEMNIFICATION OF TAYLOR GAS COMPANY; DAMAGES; LIMITATION OF ACTION. Customer, for him/herself, his/her employees and agents, and all other third parties, hereby releases Taylor Gas Company, waives all claims against Taylor Gas Company, agrees not to sue Taylor Gas Company, and agrees to indemnify and hold Taylor Gas Company harmless from any and all liability, injuries, claims, losses, damages (including consequential damages), lost profits, costs, expenses, and causes of action arising out of or related to (1) any personal injury, including death, or any property damage that may be sustained unless resulting from the sole negligence or any other actionable conduct of Taylor Gas Company; (2) Customer’s use of Equipment or tampering or unauthorized servicing thereof; (3) installation, removal, use, misuse, breakage or malfunction of equipment or piping not owned by Taylor Gas Company; (4) any Customer-owned bridge failure or other premises liability; (5) exhaustion of Customer’s Propane supply; (6) service discontinuance; (7) Customer’s breach of this Agreement; (8) any negligent acts or omissions on part of Customer. Customer, for him/herself, his/her employees and agents, and all other third parties, hereby agrees that Taylor Gas Company’s liability shall be limited to proven direct damages, not to exceed the actual amounts paid by Customer to Taylor Gas Company over the twelve (12) month period prior to the events giving rise to the claim. No demand, claim, suit, or action shall be made or brought against Taylor Gas Company, its related business units, employees, agents, assigns or successors more than two (2) years after the date of the event that caused any injury, damage or loss. This paragraph shall survive the termination of expiration of this Agreement.
10. UNCONTROLLABLE INTERRUPTION OF SERVICE: Taylor Gas Company shall not be liable to Customer or other party for failure to supply Propane or for any delay, loss or damage, or any failure to perform this Agreement due to any of the following “force majeure” conditions: flood, fire, adverse weather or environmental condition, explosion, power blackout, strike, labor dispute, embargo, unavailability of propane, acts or omissions of carriers or transportation facilities, government order or regulation, terrorist act, war, act of God, or any other cause beyond Taylor Gas Company’s reasonable control.
11. LICENSES, PERMITS AND TAXES: Customer shall pay all taxes, and for all licenses, permits or inspections, imposed by governmental entities in connection with the sale, installation, storage or use of Propane sold or Equipment leased hereunder.
12. SUCCESSORS; ASSIGNMENT; SUBCONTRACTING: This Agreement shall inure to the benefit of and be binding upon the parties and their respective successors, legal representatives and assigns, except that Customer shall not assign this Agreement without the written consent of Taylor Gas Company. It is agreed that Taylor Gas Company may assign this Agreement at any time. Taylor Gas Company also reserves the right to subcontract any or all of its obligations under this Agreement.
13. APPLICABLE LAW; ENTIRE AGREEMENT: This Agreement shall be construed in accordance with the laws of the jurisdiction of Taylor Gas Company’s address set forth above. This Agreement, including the Dispute Resolution Procedures Addendum attached hereto and made a part hereof, contains the entire agreement between the parties and supersedes all prior negotiations, proposals and oral or written agreements with respect to the subject matter hereof. Subject to Taylor Gas Company’s right, as set forth in this Agreement, to unilaterally change Prices and Fees at any time, this Agreement may only be amended by a writing executed by both parties, and provisions herein may only be waived by Seller in writing. Any Addendum to this Agreement is governed by the terms and conditions set forth herein unless otherwise expressly stated in such Addendum.
14. CUSTOMER’S CREDIT CHECK AUTHORIZATION: Customer has authorized or hereby authorizes Taylor Gas Company to conduct a credit check to evaluate his/her credit prior to Taylor Gas Company’s acceptance of this Agreement.
15. CUSTOMER’S REPRESENTATION: Customer acknowledges that he/she has become familiar with the odor of Propane and has received a copy of Taylor Gas Company’s Safety Tips attached hereto.
16. LANDOWNER’S CONSENT: If Customer is not the owner of the Delivery Address, Customer agrees to provide Taylor Gas Company with a copy of Taylor Gas Company’s “Landowner’s Consent to Installation of Propane Gas Equipment,” signed by the Landowner. Taylor Gas Company Propane, L.P. and the undersigned Customer hereby execute this Agreement as of the above Agreement Date and agree that facsimile signatures are as effective as originals.
DISPUTE RESOLUTION PROCEDURES ADDENDUM TO RESIDENTIAL AND COMMERCIAL – PROPANE SERVICE AGREEMENTS (“AGREEMENT”)
Customer and Taylor Gas Company, Inc. hereby agree that any and all Disputes (as that term is hereinafter defined) between them arising from this Agreement or any prior agreement between them, and/or the relationship created hereby or thereby, or otherwise, will be exclusively resolved by final and binding arbitration. Customer and Taylor Gas Company, Inc. agree that, by entering into this Agreement, they each are waiving the right to a trial by jury or to participate in a class action with respect to any Dispute. For ease of administration and convenience, the parties agree that the Federal Arbitration Act governs the interpretation and enforcement of this Dispute Resolution Procedures Addendum (“Addendum”). This Addendum shall survive termination of this Agreement.
Capitalized terms used in this Addendum but not otherwise defined herein shall have the same meaning as in the Agreement. For purposes of this Addendum, a “Dispute” shall be broadly interpreted to include, without limitation, any and all claim(s) arising out of or relating in any way to any aspect of the relationship between Taylor Gas Company, Inc. and Customer, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory (including, but not limited to, claims relating to advertising, marketing or other publicity), even if arising before this Agreement or any prior agreement between the parties or that may arise after the termination of this Agreement, including, without limitation, claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class. Notwithstanding the foregoing, the term “Dispute” shall not include the following claims, and only the following claims:
(a) claims by Customer (or Customer’s legal representatives) for personal injury, death or damage to tangible property arising out of the physical delivery of Propane by Taylor Gas Company, Inc. to Customer, Customer’s usage of such Propane, the condition of the Equipment or Taylor Gas Company, Inc. actions or alleged inactions with respect to such Equipment; or
(b) claims by Taylor Gas Company, Inc. to enforce Customer’s indemnification, release and/or hold harmless obligations under this Agreement and/or for the payment of any amounts alleged to be owed by Customer to Taylor Gas Company, Inc.; or
(c) claims which Customer could bring as an individual in a small claims or equivalent court; or
(d) claims by either party to enforce the terms of this Addendum.
If either party believes that a Dispute has arisen, that party first shall send a certified letter to the other party (Customer should send the certified letter to the manager of the Taylor Gas Company, Inc. location identified on the first page of this Agreement (or any successor Taylor Gas Company, Inc. location then servicing Customer)), describing with reasonable particularity the nature and basis of the Dispute and the relief sought. If the parties do not reach an agreement to resolve the Dispute within 30 days after the date the party receives the certified letter, either party may commence an arbitration proceeding by sending another certified letter notifying the other party of its intent to commence arbitration.
Arbitration of Disputes will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this Agreement, and will be conducted before a single arbitrator appointed in accordance with the AAA Rules. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The AAA shall administer the arbitration. Unless the parties otherwise agree, any arbitration hearings will take place in the county of Customer’s Billing Address. Customer may direct that the arbitration be conducted telephonically or be based on written submissions.
All issues that relate to the Dispute are for the arbitrator to decide, but the arbitrator is bound by the terms of this Agreement and this Addendum. The arbitrator may award injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim as stated in the Dispute. The arbitrator has the discretion, but not the obligation, to award fees and costs to the party prevailing in the arbitration. All awards by the arbitrator shall be in writing.
CUSTOMER AND TAYLOR GAS COMPANY, INC. AGREE THAT EACH PARTY TO THIS ADDENDUM MAY BRING CLAIMS AGAINST THE OTHER PARTY ONLY IN ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both Customer and Taylor Gas Company, Inc. otherwise agree in writing and in their sole discretion, the arbitrator may not consolidate more than one entity’s claims, and may not otherwise preside over any form of a representative or class proceeding relating to the Dispute. If this specific provision is found to be unenforceable, then the entirety of this Addendum shall be null and void.