Billing Plans

GENERAL TERMS AND CONDITIONS

1. Purchase and Sale. Company shall sell to Customer, and Customer shall purchase from Company, on an exclusive basis, all propane required by Customer (“Product”) during the term of this agreement (this “Agreement”, and together with any other Company contracts, policies or documents agreed to by Customer, the “Documentation”).

2. Equipment. If tank(s) and related propane distribution equipment (“Equipment”) are required to be provided by Company in connection with its provision of propane distribution services, then Customer shall lease such Equipment (“Company Equipment”) from Company and Company shall provide and install such Company Equipment at the Premises. If Customer owns any Equipment (“Customer Equipment”), then (i) Customer represents that it owns Customer Equipment identified on the cover page to this Agreement that is located at the Premises and (ii) title to and ownership of Customer Equipment shall at all times remain with Customer. Title to and ownership of Company Equipment shall at all times remain with Company and neither Customer nor any third party shall acquire any right or interest therein (except Customer's use permitted hereunder). Company shall have access at all times to the Premises for all purposes necessary to carry out the provisions of this Agreement (including, without limitation, entering the Premises to install, maintain or remove Equipment) without risk or liability for trespass. After installation, Company may substitute or adjust Equipment as it determines, in its sole discretion, at Customer’s sole cost and expense. Only Company’s employees, authorized contractors or representative(s) shall be permitted to connect, disconnect, access, change, remove, fill, alter, tamper with or attempt to service Equipment, and Customer shall ensure that no other party shall do any of the foregoing.

3. Fees. Customer shall pay Company, as invoiced by Company: (i) all Product charges, (ii) Equipment installation fees for labor and material and a maintenance fee for all taxes, permits and fees incurred related to Equipment and Product at the Premises; (iii) for all repairs and/or service to Equipment; (iv) all applicable rental, maintenance, “Haz-Mat” and delivery fees; (v) for any missing Company Equipment and, upon termination hereof, labor and removal fees and fees for any unreturned or damaged Company Equipment (excluding ordinary wear and tear); and (vi) all labor and material fees necessary to adjust, modify or correct Equipment or its installation if Customer constructs or allows a modification of the Premises or appliance installation that places Equipment or its installation out of compliance of applicable laws or codes (for which Customer shall give Company at least 7 days prior written notice). Company, in its sole discretion, may require Customer to post (and Company shall hold in an interest free account) a security deposit, and Company may apply such security deposit to any amounts owed by Customer to Company at any time (after which Company may, in its sole discretion, require an additional security deposit). Except as otherwise stated herein, all prices, fees and rates due or that may be due are subject to change from time to time throughout this Agreement, as determined by Company, in its sole discretion.

4. Term; Equipment Removal.  This Agreement shall be in effect for a term commencing on the date hereof and ending as per the term of the signed Agreement (minimum of 1 year) (after the service activation date) and shall automatically be renewed for successive 1 year terms at the end of each current term, unless Customer or Company provides written notice of termination at least 10 days prior to expiration of the current term. Termination by Customer prior to the end of the current term, or default by Customer of Customer’s obligations hereunder, constitutes a breach of this Agreement. Customer agrees that Company’s damages in the event of a breach by Customer are difficult or impossible to determine and, therefore, Customer shall pay Company a reasonable estimate of Company’s damages, as determined by Company, as well as a Cancellation Fee, as specified in the Documentation. Upon termination, Customer shall forfeit to the Company all Product remaining in any tank owned by Company for no consideration.  Prior to removal by Company of any Company Equipment, no person other than Company shall claim or charge any storage or rent for such Equipment. Company may disconnect any appliance or Equipment, regardless of ownership, deemed by Company to be unsafe. Upon termination, Customer shall arrange for a certified third-party provider of Product to promptly perform a leak test as described in NFPA (National Fire Protection Association) 54 and 58 and provide documentation of that test to Company within 10 days of termination.

5. Change of Ownership of Premises. Upon any change in ownership of the Premises, Customer shall advise the new owner of the Premises of this Agreement, and Company shall not be required to provide a refund to Customer or the new owner for Product sold to Customer once Customer has moved from the Premises. If the new owner does not engage Company for the provision of Product to the Premises, Customer shall be deemed to have terminated this Agreement prior to the expiration of the current term and all termination fees payable hereunder shall apply.

6. Affirmative Covenants. Customer shall: (a) execute and deliver all documents requested by Company to confirm the Company’s title and ownership of the Company Equipment; (b) promptly notify Company of any maintenance issues with, damage to or loss of Equipment, changes to the Premises, the addition of appliances or an increase in the total cubic footage using Equipment (including, without limitation, resulting in any water damage or damage to plumbing or other systems at the Premises); (c) properly maintain all Equipment; (d) request sufficient Product required to fill Equipment to its rated capacity; (e) notify Company 14 days prior to any sale or change in title to the Premises; and (f) maintain at least 1 week’s usage of Product in the tank at the Premises at all times.

7. Negative Covenants. Customer shall not do any of the following: (a) assign, pledge or otherwise convey any interest in and to the Equipment; (b) damage or lose Equipment; (c) add appliances or increase the total cubic footage using Equipment; or (d) use, manufacture, store, release or dispose of hazardous materials (whether or not on the Premises) on, under or near Equipment.

8. Indemnification; Limitation of Liability. Customer accepts the risks inherent in the storage, installation, use, delivery and refueling of Equipment and Product on the Premises and shall indemnify, defend and hold harmless Company and its agents, directors, officers and employees from and against all damages, costs, liabilities, obligations, judgments and expenses, (including, without limitation, Company’s attorney’s fees, court costs, and the costs of repair, clean-up, abatement or remediation) arising from or relating to (i) the death of, injury to or damage to the property (whether real or personal) of any person, in each case, directly or indirectly, arising or resulting from the use, misuse, storage, delivery, refueling, unauthorized service, installation, maintenance, lack of maintenance or removal of Equipment (including underground tanks and piping) or Product, including, without limitation, those damages and injuries resulting from or caused or effected by Customer’s actions or inactions, a third party or an act of God, except to the extent such damage or injury is directly caused by Company’s gross negligence or willful misconduct; (ii) Customer’s breach of any provision of this Agreement; (iii) the existence, use, manufacture, storage, release or disposal of hazardous materials by any person (whether or not on the Premises) on, under or near Equipment; (iv) the lack of or inadequate warning materials contained in the Product (including improper or inadequate amounts of odorization, improper use or type of odorant or “odorant fading”), Customer’s improper training or monitoring of its warning or training programs respecting odorization and/or the lack of warning on supplemental warning systems (such as gas detectors); and (v) any return or repossession of Equipment by Company or its designee, except to the extent directly caused by Company’s gross negligence or willful misconduct. In no event shall Company be liable to Customer or any other person for any special, incidental, consequential or punitive damages arising out of this Agreement, whether under a theory of tort, contract, product liability or otherwise, even if advised of the possibility of such damages and even if such damages could have been reasonably foreseen. CUSTOMER ASSUMES THE RISK OF ALL LOSS OR DAMAGE TO, AND LOSS OR DAMAGE CAUSED BY, THE PREMISES, THE EQUIPMENT AND/OR THE PRODUCT, EXCEPT TO THE EXTENT DIRECTLY CAUSED BY COMPANY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

9. Insurance.  Customer shall obtain and keep in force during the entire term of this Agreement, homeowners’ and other appropriate hazard insurance (at commercially reasonable maximum coverage amounts) with respect to the Premises and the use of Product and Equipment thereon.

10. Unforeseeable Interruptions.  Company’s obligation to perform under this Agreement shall be excused due to floods, fire, war, accidents, labor disturbance or any condition preventing safe access to Equipment and any other causes beyond its control.

11. Assignment; Successors.  Customer shall not assign this Agreement in any respect, by operation of law or otherwise, without Company’s prior written consent. This Agreement shall be binding upon the heirs, administrators, successors and permitted assigns of the parties hereto.  Customer represents that it has obtained all necessary approval from all applicable parties to legally bind Customer to the terms of this Agreement.

12. Modifications. Company may modify this Agreement, at any time and in its sole discretion, by providing Customer written notice of such changes. Unless otherwise provided in the revised agreement, the modified terms will take effect after 30 days of notice. If any modification is unacceptable to Customer, Customer’s sole recourse is to terminate this Agreement. Customer’s failure to terminate this Agreement within 30 days after notice of such changes shall constitute Customer’s binding acceptance and agreement to the modification. Subject to the foregoing provisions in this Section 12, all other modifications hereof must be approved in writing by Customer and Company.

13. Miscellaneous. (a) Any provisions of this Agreement deemed unenforceable by a court of competent jurisdiction shall be modified and/or deleted, only in that court’s jurisdiction, to maintain the enforceability of this Agreement in a manner that best preserves the intent and purposes of the parties. This Agreement constitutes the entire Agreement and shall supersede all prior agreements between the parties hereto. In the event of a conflict between the terms of this Agreement and the terms of any Documentation, the terms of such Documentation shall prevail; provided, however, that, in the event of any conflict between this Agreement and any “Underground Tank Agreement and/or Easement” between Company and Customer, the terms and conditions of this Agreement shall prevail.

(b) The obligations of Customer under Sections 2, 3, 4, 6, 7, 8, 9, 10, 11 and 13, of this Agreement shall survive the expiration or termination of this Agreement for any reason.

(c) If Customer fails to perform any of its obligations under this Agreement, Company shall have the right to seek, in addition to monetary damages, any equitable remedy, including, without limitation, an action for specific performance or injunctive relief to effect such performance and Customer shall pay to Company upon demand all reasonable costs and expenses of Company in connection therewith (including reasonable attorneys’ fees and court costs).

(d) THIS AGREEMENT SHALL IN ALL RESPECTS BE GOVERNED BY THE LAWS OF THE STATE OF MARYLAND. CUSTOMER AND COMPANY WAIVE ALL RIGHT TO TRIAL BY JURY FOR ALL LEGAL PROCEEDINGS OF ANY KIND ARISING FROM OR RELATING TO EQUIPMENT OR THIS AGREEMENT.

(e) All notices shall be deemed given within 3 business days after deposited in the mail unless such party has notified the other that its address has changed.

(f) THIS AGREEMENT IS A “FORWARD CONTRACT” AND COMPANY IS A “FORWARD CONTRACT MERCHANT.”