Upstate Energy Customer Agreement

Terms & Conditions

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THANK YOU FOR YOUR BUSINESS. OUR RELATIONSHIP IS BASED ON THE FOLLOWING UNDERSTANDINGS:

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• GENERAL TERMS: The provisions of this section apply to all Upstate Energy Customers, including those with Price Plans.

  1. Defined words: The words Seller, Company, We, Us, Our, Ours refer to Upstate Energy. The words Buyer, You, Your, and Yours refer to the person(s) listed as the Applicant on the Residential Supply Agreement (RSA) and customer account. The word Premises refer to the Delivery Address you indicated on your RSA and on your account. The word Plans refers to your Price Plan or Service Plan as applicable. The word Agreement refers collectively to this RSA, credit application and if applicable the terms of a Plan. LP stands for Liquefied Petroleum Gas (hereafter called “LP”). Your storage system means your own fuel container and all appurtenant piping and lines between the tank and the burning appliance but does NOT include the equipment loaned to you by Upstate Energy. The measurement of LP is to be sold and purchased under this agreement as gallons and Seller shall have the option of determining the method of measurement. Buyer shall be invoiced for actual number of U.S. gallons of liquid corrected to 60°F for LP.

  2. Automatic delivery: All automatic accounts are required to have a credit card guarantee. Upstate Energy will automatically deliver LP or heating oil to your Premises based on degree-day projections or appropriate forecasting projections. Only automatic delivery customers can participate in our service plan. See Section II below. Non-Plan customers will pay Upstate Energy's daily Posted Retail price on the date delivery is made. To enhance degree-day projection accuracy, you agree that the Company will be the only supplier of LP or heating oil to your premises or Tank Location. The Company will make every reasonable effort to keep you supplied with LP, but we cannot be liable for damages or losses etc. The Company will not be responsible if you run out of our LP as a result of changes in your use of alternate heat sources. Any change in delivery status must be made in writing to Upstate Energy.

  3. Will call delivery: The Company will deliver your LP only when you request if noted as Will Call on your RSA or if you notify us in writing to discontinue automatic delivery. Will Call customers will pay Upstate Energy's Daily Posted Retail Price posted on the date of delivery. Will Call customers are not eligible for Plans. The Company generally needs advance 72 hours’ notice for Will Call deliveries. If you call with less than 72 hours’ notice, we may not be able to meet your schedule. Minimum requirements may apply. The Company suggests that you call us when you tank reaches thirty percent (30%) capacity. Any change in delivery status must be made in writing and is subject to credit approval.

  4. Emergency delivery: The Company will fulfill your emergency delivery requests as soon as practicable. However, certain circumstances may cause delay and emergency delivery fee(s) may apply.

  5. Delivery (conditions): A copy of the delivery invoice shall be left at Buyers premises even if the customer is not present at the time of the delivery or emailed within forty-eight (48) hours of delivery at customer’s request. Buyer grants permission to Seller to access property for deliveries and removal of Company equipment. You will provide us a safe, accessible approach and access to the LP container at all times. Seller is not responsible for claims resulting from damage to any unmarked sprinkler, electrical, septic, phone, utility or other underground lines. Seller is not responsible for driveway damage unless Buyer specifies in writing that the Company is prohibited from using it.

  6. LP (customer owned) systems: Unless you notify us otherwise, the Company will rely on your continuous representation that you have inspected your storage system and that it is in compliance with applicable legal requirements, leak-free and otherwise safe to deliver into.
     It is your sole responsibility to inspect your storage system and take all actions necessary to confirm that it is in compliance with applicable legal requirements, leak-free and safe for deliveries.
     The Company will not be liable for any damage or loss if we cannot deliver your LP because (a) we cannot access your LP container, (b) a dangerous or unsanitary condition exists in or around the premises, for example ice, snow, or a wild, unruly or menacing animal, (c) your storage system violates legal requirements, (d) we are prevented by circumstances beyond our control. All deliveries may be subject to delivery fees, government fees and taxes.

  7. Limited Environmental Liability: Seller is not responsible for the condition of your storage system unless it is on loan from us. Service Plans do not cover any storage system or costs. You are solely responsible for the cost of installation, maintenance, repair, replacement, removal, or necessary modification of your storage system. You will be solely responsible for all costs of any cleanup, remediation, or other act of complying with any environmental legal requirements related to your storage system, unless resulting solely from Seller’s gross negligence. Upstate Energy WILL NOT BE LIABLE FOR ANY LOSS, BODILY INJURY, LIABILITY, PENALTY, FINES, PROPERTY DAMAGE, EXPENSE, OR DECREASE IN PROPERTY VALUE ARISING OUT OF THE DISPOSAL, DISCHARGE, DISPERSAL, RELEASE OR ESCAPE OF ANY HAZARDOUS SUBSTANCE INTO OR UPON YOUR PREMISES, SURROUNDING PROPERTY, THE ATMOSPHERE OR ANY WATER COURSE OR BODY OF WATER UNLESS IN EACH CASE CAUSED BY THE COMPANY’S GROSS NEGLIGENCE. Buyer acknowledges that the Company has provided Safety Data Sheets, if applicable.
     Environmental Compliance Charge (ECC) – This fee, which is assessed on every product delivery, is calculated to offset a portion of costs related to federal, state and local government-mandated compliance processes for the handling of hazardous materials, workplace safety, emergency preparedness, and environmental protection, among other things. It enables the Company to maintain its mandated safety standards, provide training and continue our goal of excellent service.

  8. Service not included. Service Warranty: You agree to pay the Company for parts and labor at our current rates for any service work that is not covered by a Plan or our warranty. Shop fees or waste fees may apply.

  9. LP equipment loan: The Company may lend you one or more LP containers and related equipment as needed. The Customer agrees to purchase a minimum of the maximum gallon capacity of the tank storage provided per year at this location. If Customer fails to satisfy this requirement, the Company has the right to charge a minimum annual requirement charge calculated by taking the difference between the container size and actual usage, multiplied by the then Upstate Energy's Posted Price Per Gallon. A container fee may apply to Customers using less than capacity of storage tank annually. Customers who lease the equipment are not subject to the minimum use charge. Container loan or lease fee may apply. When you stop using our container, we will remove it and charge a minimum one-hour labor and an hourly container pump-out fee if applicable. Buyer shall pay for cost of removal including transit and rigging to Seller’s plant at current hourly labor rate.

  10. Terms of payment, billing, late payments: All sales are subject to credit approval and are final when delivered. Buyer authorizes Seller to check Buyer’s credit. You agree to pay invoices within 10 days of invoice date. Returned checks are subject to a minimum of a $20 fee. Statements will be sent for service charges, overdue amounts, additional fees and charges. If credit of the Buyer shall be deemed unsatisfactory by the Seller, Seller shall have the right to require payment in advance before making further deliveries or providing services. Buyer agrees to pay finance charges at the maximum legal rate of interest. It should be noted customer payments through other online payment sources (i.e. www.authorized.net) which are deemed non-affiliate to Upstate Energy could delay recording of such payment. The preferred payment method is to utilize Upstate Energy's phone number to call for payment.
      By providing your preferred payment method, you understand that payment methods can be used by each of our entities in the event you purchase multiple products and/or services accordingly.

  11. All sales are final.

  12. Taxes: Buyer shall pay all license, permit or inspection fees or taxes imposed upon or in respect to the sale, installation, storage or use of LP Gas sold or LP Gas equipment loaned hereunder.

  13. Consent to Communications: By entering into this Agreement, you consent to the receipt of electronic mail (“e-mail”), text messages, and customer service phone communications (including on-screen notifications and Robo calls) from us regarding (a) Delivery, Service, and potential Billing/Credit collections, and (b) other services and products we believe may be of interest to you. You may opt out of future e-mails, text messages, notifications and phone communications including Robo calls about such products or services, by contacting Customer Service. You may not, however, opt out of receiving communications regarding important information relating to your account, including past due balances, or this Agreement.

  14. Location Safety Inspection Fee: As of June 1, 2023, cylinder customers (non-residential) will be subject to an annual location safety inspection fee for safety verification and maintenance of cylinders, cages, equipment, and ancillary items. See your account for specific charges.

  15. Collection cost: If the Company hires an attorney or agency to collect your unpaid balance, you agree to pay, in addition to your balance, all costs of collection as permitted by law, including without limitation, reasonable attorney and agency fees and Court costs. The Company may accept late payment, partial payment and payment marked “payment in full” without losing any of its legal rights. The Company may waive or delay enforcing this Agreement without losing or impairing any of our rights.

  16. Force-Majeure-Other Contingencies. Subrogation waived:To the extent otherwise legally permitted, Buyer and Seller mutually waive any and all rights of subrogation and recovery against each other in any way related to this Agreement, the delivery of LP or any service or repair at your premises to the extent a loss or damage is compensated by proceeds from casualty, homeowner’s or other insurance received by the other party. No third party, for example an insurer, may seek recovery on behalf of one party against the other by way of subrogation, assignment or otherwise whether based in tort, contract or otherwise. In the event that either party hereto is hindered, delayed or prevented by an act of God, flood, fire, explosion, act of terrorism, war, riot, strike, reduced product allocations, lack or failure of transportation facilities, shortage of product, suitable parts, materials or labor or other labor disturbances, including without limitations, any delay caused by Buyer, Seller may terminate this Agreement upon written notice to Buyer.
      Company acknowledges that it has filed a Notice of Business Activities Report or Certificate of Authority to do business in New York, if applicable.

  17. Period of Contract: This Agreement shall become effective upon its execution or on such date when Company shall notify Buyer that the installation or modification of the equipment on the Buyers Premises has been completed, and shall continue for a period of one (1) year from such effective date and thereafter renewing automatically year to year, subject to, (a) termination, by either party at the expiration of the initial one (1) year period or any subsequent yearly period, upon 60 days written notice, “by Certified mail” or (b) termination, by either party after failure of the other party to fulfill or conform to any of the terms or conditions hereof, upon like written notice to the other party. If you have certain active Plans, you may incur an early termination fee for terminating this Agreement.

  18. Tank Monitor Contracts: This service is only available to existing Credit approved Upstate Energy Customers. All Tank Monitors remain property of Upstate Energy; if Customer fails to return the Tank Monitor Equipment to Upstate Energy, Customer shall pay Upstate Energy the then cost of replacement.

  19. Amendments, Assignment, Severability: The Company may impose, eliminate, or change our fees, rates, charges, and minimums without notice. This Agreement may not be changed orally. Any changes to this Agreement will be made by publishing a new version at www.upstate-energy.com. Your acceptance of any service or product from us will indicate your agreement with the terms and conditions of Upstate Energy Customer Agreement in effect on the date of delivery. Customer will be notified in writing 30 days prior to any material changes in Upstate Energy Terms and conditions. You may not assign this Agreement or any right or duty hereunder without our prior written consent. If you try to assign it, you will remain liable to us. If a court or regulatory agency of competent jurisdiction holds any provision of this Agreement to be invalid, void or unenforceable in a particular circumstance, the remaining provisions will continue in full force and effect and the severed provision will remain in effect in other circumstances. Section headings are not terms of this Agreement.

  20. Third-Party Notifications: Buyer may request a Third Party be notified of changes to their account by completing a Third-Party Notification Form available by contacting our office.

  21. Liability Limited: The Company will not be responsible for loss or damage arising from changes in LP consumption; your failure to schedule maintenance; leaking LP line; power interruption or loss; vacant, unattended, or unoccupied premises; theft; abuse or misuse of equipment; spontaneous part failure; act of God; terrorism; war; riot; blockade; embargo; strike; lockout; shortage of LP, reduced allocations, labor, transport, electricity, or water; inability of hedging counterparty to perform its contract duties; explosion; fire; flood; snow; hurricane; extreme adverse weather; delay; accident; governmental act; or any other condition beyond our reasonable control. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE COMPANY WILL NOT BE LIABLE FOR THIRD PARTY CLAIMS, OR FOR DIRECT OR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING LOST PROFITS, LOSS OF USE, EVEN IF WE ARE INFORMED OF THEIR POSSIBILITY. Any and all suits and actions against the Company, whether based in contract, tort or otherwise, whether for personal injury or property damage, in any way related to this Agreement must be commented within one year of the cause of action. IN NO EVENT SHALL THE COMPANY’S AGGREGATE LIABILITY TO YOU OR OTHERS UNDER THIS AGREEMENT OR OTHERWISE EXCEED $1,000 OR THE COST OF REPLACEMENT OR REPAIRS OF SERVICES OR PRODUCT, WHICHEVER IS LESS.

 

• TERMS OF PRICE PLANS: The provisions of this section apply to your Fixed Prepay Plan, Budget Plan, and similar pricing plan from us. (collectively referred to as Price Plan).

  1. Eligibility: Price Plans require you to be on automatic delivery. If you cancel automatic delivery during the Plan Period, your Price Plans will terminate.

  2. Plan period; plan gallons: The Plan Period and Plan Gallons are specified at the time you purchase your Price Plan.

  3. Automatic delivery after Plan expires, is exhausted or is terminated: After the Plan period expires, your Plan gallons are delivered, or you terminate your price Plan, whichever is earlier, we will continue to make automatic deliveries to your premises at the Upstate Energy Daily Posted Retail price, unless you request otherwise in writing.

  4. Unused Plan balance: Any remaining credit balance for gallons not delivered at the end of the Plan Period will be applied to future purchases as a credit to the customer’s account at Upstate Energy's Daily Posted Retail Price rate at the time of delivery.
     All deliveries will be made on an automatic basis as determined by Upstate Energy and container will not be topped off to use any credits remaining on file. Prepaid purchases are nonrefundable. Substantial under usage may subject unused gallons to penalties such as the early termination fee and are not refundable.

  5. Budget plan payments: You must remain current with your Budget Plan payments at all times. If your account is overdue, your Price Plan may be terminated and subject to early termination, lateness and other fees and charges.

  6. Service not included: Service Plans are sold separately from Price Plans. Services covered by the Service Plan are not included in the Price Plans, unless expressly specified in our written offer of the Price Plan.

  7. LP Pre-Buy balances: are not refundable.

 

• ARBITRATION: You agree that any claim, dispute, or controversy, whether in contract, tort (intentional or otherwise), including without limitation, product liability, property damage, personal injury claims, or claims based on strict liability, whether pre-existing, present or future, and including constitutional, statutory, common, law, regulatory, and equitable claims in any way relating to (a) the Service; (b) any Rented Equipment or equipment sold to you by us; (c) the Agreement; (d) Propane delivered or sold by us; or (e) the Safety Plan, advertisements, promotions, or other brochures or writings prepared by us in any way relating to the Service of this Agreement and/or the relationship between you and us, including the validity, enforceability, or scope of this Section or any part thereof (collectively a “Claim”) shall be resolved, upon the election or either you or us, by binding Arbitration.

  1. Process for Arbitration: Arbitration will be governed by the terms and conditions of this Agreement and the applicable rules of either the American Arbitration Association or JAMS/Endispute. The party initiating the arbitration proceeding shall have the right to select one (1) of the above arbitration administrators. The Claim proceeding shall be heard by a panel of three (3) independent arbitrators. Each party shall appoint one (1) arbitrator within sixty (60) days of the initiation of the arbitration proceeding, and the third impartial arbitrator must be appointed by both parties. The arbitration shall take place in the county in which Service is provided to you. In the event of a conflict with the terms and conditions of this Agreement and the rules of the arbitration administrator, the terms and conditions will govern. This Section shall not apply to Claims by us for payment of amounts due for Propane purchase or equipment rental, including all applicable fees, late payment charges, returned check chares and collection costs.

 

• GOVERNING LAW: This Agreement and all Service performed under this Agreement are governed by the law of the State of New York, without regard to the choice of law rules, except that the arbitration provisions in the terms and conditions are governed by the Federal Arbitration Act (“FAA”).