1.Agreement to Sell and Purchase Energy. This is an agreement between East Coast Power & Gas of New Jersey, LLC (“East”),and the undersigned Customer (“Agreement”). The purpose of this document is to authorize a change in the Customer’s Third PartySupplier (“TPS”) Subject to the terms and conditions of thisAgreement, East agrees to sell and deliver, and Customer agrees to purchase and accept the quantity of natural gas and/or electricity, as estimated by East, necessary to meet Customer’s requirements based upon consumption data obtained by East or the delivery schedule of the Local Distribution Utility (the “LDC”).East is not affiliated with and does not represent the LDC. TheLDC will continue to deliver the natural gas and/or electricity supplied by East. East shall use commercially reasonable efforts to promptly enroll Customer’s Account(s) with the LDC. East shall not be held liable to Customer for delay or failure in enrollingCustomer Account(s) if such delay or failure was due to any cause beyond East’s control.
2.Term. For Variable Rate service this Agreement shall commence as of the date Customer’s notice regarding the change of Customer’s provider to East is deemed effective by the LDC, and shall continue for thirty (30) days thereafter (the “Initial Term”).Unless otherwise agreed to, upon completion of the Initial Term, this Agreement will renew on a month-to-month basis indefinitely with a monthly variable rate methodology with no change to the remaining terms. (the “Renewal Term”). While receiving service on a month-to-month basis, either party may cancel or terminate this Agreement by providing thirty (30) days’ advance written notice of termination to the other party.
For Fixed Rate and Index Price Plan service, this Agreement shall commence as of the date Customer’s notice regarding the change of Customer’s provider to East is deemed effective by the LDC, and shall continue for the term as designated in the Contract Summary the (the “Initial Term). Unless otherwise agreed to, upon completion of the Initial Term, this Agreement will renew on a month-to-month basis with a monthly variable rate methodology with no change to the remaining terms (the “Renewal Term”). At least thirty (30) days and no more than sixty (60) days prior to the renewal date, East will notify Customer in writing of the terms of renewal of this Agreement and of the Customer’s right to renew, reject or renegotiate this Agreement. While receiving service on a month-to-month basis, such notification will be provided only for the first renewal occurring at the end of the Initial term. While receiving service on a month-to-month basis, Customer or East may cancel or terminate this Agreement by providing thirty (30) days’ advance written notice of termination to the other party.
3. Pricing, Billing, Termination, Fees. Unless otherwise agreed to in writing, the price listed in the Contract Summary for all natural gas and/or electricity sold under this Agreement is inclusive of New Jersey Sales and Use Tax. East reserves the right to request a credit history on an applicant for service prior to offering service and to refuse service to anyone who does not meet East’s credit standards. Prices shall be one of the following, plus all other applicable taxes:
Commercial and Residential Customers:
- Variable price which each month shall reflect the whole sale cost of natural gas (including commodity, capacity, storage and balancing), transportation to the Delivery Point, and other market-related factors, plus all applicable taxes, fees, charges or other assessments and East’s costs, expenses and margins;
- NYMEX plus a fixed adder (Index); or
- Fixed price on a per therm basis.
- Variable each month shall reflect the cost of electricity obtained from all sources (including energy, capacity, settlement, ancillaries), related transmission and distribution charges and other market-related factors, including such factors as electricity market pricing, Utility charges, and other market price related factors, as determined by East’s discretion, plus all applicable taxes, fees, charges or other assessments and East’s costs, expenses and margins;
- Index plus a fixed adder (Index); or
- Fixed price on a per kWh basis. In each case, plus all applicable taxes.
Prices include the charge for electricity and/or natural gas and estimated charges for the electricity or natural gas components set forth in the Contract Summary. Specific costs for each electricity and/ or natural gas component (“Component Cost”) have been estimated by East using information and data provided by Customer, the LDC or Independent System Operator (“ISO”). To the extent that any estimated Component Cost is higher based on increased commodity charges, information received from the LDC or ISO, or if such estimated Component Cost increases during the term of this Agreement, East may charge commercial Customers an allocation for such increased costs (“Price Component Adjustments”) as part of East’s commodity charge. Depending on the format, Price Component Adjustments may appear on Customer’s bill as a line item or price adjustment. If a Component Cost increase causes the commodity charge to materially increase for residential Customers, East reserves the right to cancel the Agreement with thirty (30) days’ notice. Commercial Customers:
If a commercial Customer on a fixed price rate exceeds the level of usage from the same calendar month the previous year (“Base Load”) by ten percent (10%) or more, the Customer will 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 ten percent (10%) or more below the Base Load, the Customer will be charged (i) the agreed upon fixed price for usage and (ii) for the usage shortfall, East’s costs for hedging, cash out costs, settlement or balancing costs related to the difference between the base load minus ten percent (10%) and the actual consumption. All calculations will be performed on a per account basis. If (i) Customer is late or otherwise delinquent in the payment of any invoice on two (2) or more occasions in a six (6) month period; or (ii) East determines at any time during the term of this Agreement, that Customer’s credit is unsatisfactory; East shall have the right to request a security deposit. Any such deposit will be held without interest. The deposit, less any outstanding balance owed by Customer to East, will be credited to Customer upon closing Customer’s account with East. In lieu of a cash deposit, East may, in its sole discretion, accept other forms of security from Customer that East finds acceptable. After such security request, Customer shall have five (5) business days to pay security deposit. If the deposit is not paid or otherwise posted, this shall constitute a breach by Customer of this Agreement.
For any NYMEX + products East will execute NYMEX/Henry Hub trigger prices associated with Customer’s executed sales agreement. Trigger volumes will be defined and requested by the Customer and be evenly divisible by 2,500 Dth and will not exceed the total monthly volume per Customer’s contractual obligation. The requested trigger prices and associated volumes will be valid until executed or amended by the Customer in writing or e-mail
Residential and Commercial Customers:
Depending on the Customer’s LDC, and contract, Customer may receive a single bill for both commodity and delivery costs from either East or the LDC. Alternatively, the LDC and East may invoice Customer separately. If East invoices Customer monthly for natural gas and/or electricity supplied under this Agreement, as measured by the LDC, Customer will pay each invoice in full within fifteen (15) days of the invoice date or be subject to a late payment charge. East reserves the right to require security deposits from residential and commercial Customers with non-POR Agreements.
If during the time Dual Billing Option is being utilized, any payment for the East electricity charge or natural gas charge is late under the applicable payment terms, then East shall have the right, without prior notice to the customer and at customer’s cost, to convert all billing hereunder to the Consolidated Billing Option. East may assign and sell Customer accounts receivable to the LDC. If Customer’s energy usage exceeds the cost of providing services to Customer and East is no longer economically able to continue this Agreement, East has the right to terminate this Agreement in accordance with applicable regulations. Failure by a commercial customer to make full payment of East charges due on any consolidated bill prepared by the LDC for East will be grounds for disconnection of Utility services in accordance with the New Jersey Administrative Code rules and the Board of Public Utilities (‘BPU”) regulations on the termination of service to non-residential customers, A thirty-dollar ($30) fee will be charged for all returned payments.
Residential and Commercial Customers:
East may terminate this Agreement with thirty (30) days written notice if Customer breaches the terms of this Agreement or if there is a material adverse change in the business or financial condition of Customer (as determined by East at its discretion). A Customer breach shall include, but not be limited to: (i) fails to make timely payment of all amounts due to East; (ii) fails to post a security deposit under the provisions of the this Agreement herein within five (5) days of request for deposit; (iii) breaches any warranty or representation to East; (iv) defaults on any material obligation under this Agreement; (v)(A) makes an assignment for the benefit of creditors, (B) files a petition or otherwise authorizes the commencement of a proceeding under the Bankruptcy Code or similar law for protection of creditors, or has such petition filed against it, (C) otherwise becomes bankrupt or insolvent, or (D) is unable to pay its debts as they fall due; or (vi) enters into a merger with, or sells substantially all of its assets to, another entity that fails to assume Customer’s obligations under this Agreement. In the event service is terminated due to a Customer breach, Customer shall pay the Early Termination Fee or, if applicable, damages incurred by East as provided in this Agreement. East will notify Customer of its intent to terminate service at least thirty (30) days prior to the effective date of termination and, unless another competitive electricity supplier is chosen by Customer, Customer’s electricity will be provided by the LDC.
Residential and Commercial Customers:
If Customer terminates this Agreement prior to the end of the Initial or Renewal Term or if East terminates this Agreement due to Customer’s breach, the Customer shall pay East, in addition to any other applicable charges, an Early Termination Fee.
Late Payment Fees are equal to one and a half percent (1.5%) per month.
Early termination fees- for residential Customers on variable price contracts there is no early termination fee. For Customers on a fixed price agreement with twelve (12) months or less, an early termination fee of $99.00 will apply. For residential Customers with more than twelve (12) months remaining on their fixed price agreement an early termination fee of $199.00 will apply.
Upon early termination or breach commercial Customers will pay an equivalent to the multiplication of the (i) difference between the fixed price set forth in this Agreement and the calculation by East of the fixed price at the date of termination; and (ii) the estimated volumes for the remainder of the Initial or Renewal Term, as applicable using the actual volumes received by Customer for the prior twelve (12) month period as the volumes used in determining damages.
4. Assignment. Customer may not assign its interests in and delegate its obligations under this Agreement without the express written consent of East. East may sell, transfer, pledge, or assign the accounts, revenues, or proceeds hereof, in connection with any financing agreement or receivables purchase program, and may assign this Agreement to another TPS or other entity as authorized by the BPU.
5. Information Release Authorization. Customer authorizes East to obtain and review the following information from the LDC: consumption history; billing determinants; account number; credit information; public assistance status; existence of medical emergencies. At East’s request, Customer will provide an authorization which grants East the authority to obtain Customer’s current and historic natural gas and electricity cost and usage data from the LDC, and other information specified in the authorization. Unless rescinded, this authorization shall be valid during the term or this Agreement. This information may be used by East 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. If East determines, prior to offering service or at any time during the term of this Agreement, that Customer’s credit is unsatisfactory, East has the right to require Customer to make alternate payment or credit arrangements to ensure prompt payment of amounts owed or otherwise payable under this Agreement including, without limitation, the posting of an initial or subsequent security deposit or an increase in the amount of any deposit. Customer’s execution of this Agreement shall constitute authorization for the release of this information to East. 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 East or by calling East at 1-800-545-9155. East reserves the right to cancel this Agreement in the event Customer rescinds the authorization.
6. Consumer Protections. The services provided by East to Customer are governed by the terms and conditions of this Agreement. East will provide at least thirty (30) days’ notice prior to the cancellation of service to Customer. In the event of non-payment of any charges owed to East, a residential Customer may be subject to termination of commodity service and the suspension of distribution service under procedures approved by the BPU. There is no charge for starting or stopping electric generation service or gas supply service, if done within the terms of this agreement. Nothing contained in this Agreement shall constitute a waiver of any rights you may have under New Jersey or federal consumer protection laws. Customer may obtain additional information by contacting East at 1-800-545-9155 or the BPU at 800-624-0241, or by writing to the BPU at: New Jersey Board of Public Utilities 44 S. Clinton Ave. Trenton, New Jersey 08625., or through its website at: http://www.state.nj.us/bpu/assistance/complaints/inquiry.html
7. Cancellation. A residential Customer may rescind this Agreement within seven (7) calendar days from the date of the confirmation notice by contacting the LDC and rescinding the TPS selection or by contacting East at 1-800-545-9155 or in writing at East Coast Power & Gas of New Jersey, LLC, 340 Jackson Ave, Bronx, N.Y. 10454. The contract for electric and or natural gas supply service shall not be legally binding upon the residential customer until the seven (7) day confirmation period has expired, and the customer has not directly or indirectly rescinded his or her selection. Customer is liable for all East charges, after the rescission period, until Customer returns to the LDC or goes to another supplier. Residential customers may terminate the contract, with forty-eight (48) hours’ notice without penalty, as the result of relocation within or outside the LDC’s franchise area, disability that renders the customer of record unable to pay or death. A final bill will be rendered within twenty (20) days after the final scheduled meter reading or if access is unavailable, an estimate of consumption will be used in the final bill, which will be reconciled subsequent to the final meter reading.
Natural Gas. Customer hereby designates East as agent to: (a) arrange and administer contracts and service agreements between Customer and East and between the interstate pipeline transporters of Customer natural gas supplies; (b) arrange for the transportation of the natural gas supplied under this Agreement from the Sales Points to the Delivery Points and from the Delivery Points to the Customer’s end-use premises. The Sales Points for the natural gas supplies provided under this Agreement may be a point or points located outside the State of New Jersey as selected from time to time by East to assure service reliability. The Delivery Points for the natural gas transported by interstate pipelines will be the city gate stations of the LDC; and (c) aggregate Customer’s natural gas supplies with such supplies of other customers served by East to maintain qualification for LDC transportation service and resolve imbalances that may arise during the term of this Agreement. East as agent for the Customer will schedule the delivery of adequate supplies of natural gas that meet the Customer’s city gate requirements as established by the LDC and in response to information provided by the LDC. These services are provided on an arm’s length basis and market-based compensation is included in the price noted above.
Electric: Customer hereby designates East as agent to: (a) arrange and administer contracts and service agreements between Customer and East and those entities including the ISO engaged in the generation, transmission and delivery of Customer electricity supplies; and (b) schedule for the delivery of electricity to the Sales Point and the Customer’s end-use premises. East as agent for the Customer will schedule the delivery of adequate supplies of electricity that meet the Customer’s requirements as established by the LDC and in response to information provided by the LDC. The Sales Points for the electricity will be a point at the ISO East load bus (located outside of the municipality where Customer resides). These services are provided on an arm’s length basis and market-based compensation is included in the price noted above.
9. Buyer’s Usage Obligations: For Customers providing Contract Quantity as the base usage of this Agreement, as described in Attachment A and if there is a Material Usage Deviation, Customer will be responsible for the losses and costs, including the costs of obtaining and/or liquidating the applicable volume, based upon the difference between the applicable Contract Quantity and Actual Quantity. Customer will pay the amount of such losses and costs to East within fifteen (15) Business Days of East’s invoice. “Material Usage Deviation” means any deviation in Actual Quantity at the Service Location(s) stated in the related Transaction Confirmation from Contract Quantity (or, as applicable, estimated Contract Quantities) stated in that Transaction Confirmation of +/- 25% or more.
10. Addition or Deletion of account(s): At any time during the term of this Agreement, upon advance written notice to East, Customer may request to add accounts to be served pursuant to this Agreement at the Contract Price, or to delete accounts from service for no early termination fee, up to the point at which the contracted volumes remain constant and unchanged in aggregate. Account addition(s) that cause the add/delete band to be exceeded may be, at East’s sole discretion, added at the Contract Price. If East does not offer to add such account addition(s) at the Contract Price, Customer and East may agree to a price for the additional volumes. Account deletion(s) in excess of the add/delete band may be, at East’s sole discretion, deleted for no early termination charge for such deletion(s). If East does not offer to delete such account(s) for no early termination charge, Customer shall pay East for the liquidation value (Contract Price less current market price) of the associated quantity liquidated within fifteen (15) days of notice from East of such amount due. The timing of completion for any addition or deletion shall be determined by the enrollment/drop rules in effect for the applicable market.
11. Title. Customer and East agree that title to, control of, and risk of loss to the natural gas and electricity supplied by East under this Agreement will transfer from East to Customer at the Delivery Point(s). Where applicable, Customer shall indemnify and defend East from all claims for any loss, damage, or injury to persons or property, including without limitation all consequential, incidentals, exemplary, or punitive damages arising from or relating to the distribution or consumption of electricity at and after the point at which the LDC delivers the electricity to Customer’s facilities to which the Account(s) pertain.
12. Warranty. This Agreement, including any enrollment form and applicable attachments, as written makes up the entire Agreement between Customer and East. East makes no representations or warranties other than those expressly set forth in this Agreement, and East expressly disclaims all other warranties, express or implied, including merchantability and fitness for a particular use.
13. Force Majeure. East will make commercially reasonable efforts to provide natural gas and/or electricity hereunder but East does not guarantee a continuous supply of natural gas and/or electricity to Customer. Certain causes and events out of the control of East (“Force Majeure Events”) may result in interruptions in service. East will not be liable for any such interruptions caused by a Force Majeure Event, and East shall not be liable for damages caused by Force Majeure Events. Force Majeure Events shall include extreme weather events, acts of God, fire, flood, storm, terrorism, war, civil disturbance, acts of any governmental authority, accidents, strikes, labor disputes or problems, required maintenance work, inability to access the local distribution utility system, non-performance by the LDC (including, but not limited to, a facility outage on its gas distribution lines or electric facilities), changes in laws, rules, or regulations of any governmental authority or any other cause beyond East’s control.
14. Liability. The remedy in any claim or suit by Customer against East 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 twelve (12) months). To the extent permitted by law, Customer agrees to waive all other remedies at law or in equity. In no event will either East 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.
15. East Contact Information. Customer may contact East’s Customer Service Center at 1-800-545-9155, Monday through Friday 8:00 a.m. – 8:00 p.m. EST (hours subject to change). Customer may write to East at: East Coast Power & Gas of New Jersey, LLC, 340 Jackson Ave, Bronx, N.Y. 10454.
16. Dispute Resolution. Residential Customers: In the event of a billing dispute involving East’s service hereunder, the parties will use their best efforts to resolve the dispute. Customer should contact East by telephone or in writing as provided above. The dispute or complaint relating to a residential customer may be submitted by either party at any time to the BPU pursuant to its Complaint Handling Procedures (“Procedures”) or calling the BPU at 1-800-624-0241.Customer must pay the bill in full, except for the disputed amount, during the pendency of the dispute; such payment shall be refunded if warranted by the decision of BPU.
Commercial Customers: In the event of a billing dispute involving East’s service, Customer should contact East’s Customer Service Center as provided above. Customer must pay the undisputed amount of its bill in full during the pendency of the dispute. If the parties cannot resolve the dispute within forty-five (45) days, either party may avail itself of all remedies available under law or equity. The BPU will monitor inquiries and contacts from Non-Residential customers regarding TPS and an excessive number of confirmed complaints may result in East no longer being eligible to supply natural gas or electricity in New Jersey. The BPU can be reached at the information provided above.
17. Choice of Laws. Venue for any lawsuit brought to enforce any term or condition of this Agreement shall be New Jersey This Agreement shall be construed under, and shall be governed by, the laws of the state of New Jersey.
18. Taxes. Except as otherwise provided in the Agreement or provided by law, all taxes of whatsoever kind, nature and description due and payable with respect to service provided under this Agreement, other than taxes based on East’s net income, shall be paid by Customer and Customer agrees to indemnify East and hold East harmless from and against any and all such taxes.
19. Regulatory Changes. This Agreement is subject to present and future legislation, orders, rules, regulations or decisions of a duly constituted governmental authority having jurisdiction over this Agreement or the services to be provided hereunder. If at some future date there is a change in any law, rule, regulation, tariff, or regulatory structure (“Regulatory Change”) which requires the change of any material term, condition or provision of this Agreement, East shall have the right to modify this Agreement to reflect such Regulatory Change by providing thirty (30) days’ written notice of such modification to the Customer.
20. Emergency Service. The LDC will continue to respond to leaks and emergencies. In the event of a gas leak, service interruption or other emergency, Customer should immediately call the LDC at Atlantic City Electric at 1-800-833-7476; Public Service Electric and Gas 1-800-436-7734; Jersey Central Power & Light 1-888-544-4877; New Jersey Natural Gas 1-800-427-5325 Customer should then call East at: 1-800-545-9155.
21. 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) Seller 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 Utility; and (e) the Utility, and not Seller, is responsible for responding to service problems or emergencies should they occur.
22. Parties Bound. This Agreement is binding upon the parties hereto and their respective successors and legal assigns. Customer and East 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.
23. Loyalty Program. Unless Customer indicates otherwise, Customer will be automatically enrolled in East’s Customer Loyalty Point Program (“Program”). Customer may opt-out of participation of the Program at any time by contacting East at 1.800.545.9155. More information about the Program is available at www.ecpowerandgas.com.
24. Gift Cards. Any Prepaid Card promotion will be issued following the completion of your first paid month of commodity supply in which this promotion has been applied to your East account. Please allow several weeks for processing and delivery. No Prepaid Card will be issued to you if: (i) your account is in arrears or inactive; (ii) your energy usage or credit does not meet East requirements; (iii) you have received an East promotion within the past twelve (12) months; (iv) you cancel service prior to completion of your first month of supply; (v) fail to submit any documentation that is required prior to issuance of your Prepaid card or (vi) fail to timely submit any requisite documentation. This promotion is only available to new customers for a limited time and is only valid on fixed rate electric and natural gas products. This promotion may not be combined with other promotions or special rates. This promotion may be cancelled at any time and may not be available in all areas. East reserves the right to bill you for the full value of your Prepaid Card if you are issued a card and you choose to cancel your East service within ninety (90) days of your first billing cycle.
25. Renewable Energy Product. The Company will ensure that the agreed upon percentage of Customer’s electricity supply comes from regional renewable energy resources such as biomass, biogas, wind, solar, and hydro in accordance with New Jersey’s Renewable Portfolio Standard
26. Signatory Affirmation. Signor affirms that he or she is authorized to make decisions regarding the account and voluntarily authorizes Supplier to make the enrollment. Customer agrees to accept all notifications by email to the email address provided at time of enrollment, or subsequently provided to East.
27. Energy Consumption Information Commercial Customers only) Customer hereby agrees, upon request, to provide East with facility descriptions, operating information, meter identification numbers and locations, and such other information available to Customer as East may reasonably require to provide electric and/ or gas service pursuant to this Agreement. Customer’s expected energy usage for the Accounts may change for various reasons including, without limitation, additional equipment going on-line, ramp-up in equipment use, equipment modifications, increasing operating hours, remodel or facilities, new construction, applications for new construction permits, participation in demand response programs, participation in special government electricity supply programs or on-site electric generation of any type or size. Customer shall provide East at least thirty (30) days advance notice whenever it believes that Customer’s estimated monthly aggregate usage will materially change from Customer’s historical monthly usage, weather normalized, and shall provide good faith estimates of such usage changes.