1. Agreement to Sell and Purchase Energy. This is an agreement between East Coast Power and Gas, LLC (“East”), 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 East (the “Agree- ment”). Subject to the terms and conditions of this Agreement, 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. The amount of natural gas and/or electricity supplied under this Agreement is subject to change based upon data reflecting Customer’s consumption obtained by East or the LDC’s delivery schedule. The LDC will continue to deliver the natural gas and/or electricity supplied by East.
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 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 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 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 3-36 months thereafter, as designated on your Customer Disclosure Statement (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 30 days and no more than 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, and Customer or East may cancel or terminate this Agreement by providing 30 days’ advance written notice of termination to the other party.
3. Pricing, Billing, Termination. Unless otherwise agreed to in writing, the price for all natural gas sold under this Agreement is designated on your Customer Disclosure Statement (“Disclosure Statement”). As designated in your Disclosure Statement, the price for natural gas shall be one of the following: a 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 a fixed price on a per therm basis. In each case, plus all applicable taxes, fees, charges or other assessments and East’s costs, expenses and margins. Unless otherwise agreed to in writing, the price for all electricity sold under this Agreement is designated on your Disclosure Statement. As designated in your Disclosure Statement, the price for electricity shall be one of the following: a variable price which shall each month 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 a fixed price on a per kWh basis. In each case, plus all applicable taxes, fees, charges or other assessments and East’s costs, expenses and margins. All Fixed, Index and NYMEX+ rates may be modified due to a subsequent change in the law per the Regulatory Change section 19 of the Terms & Conditions.
For fixed price service if usage in any month exceeds the level of usage in the same month in the previous year (“Base Load”) by ten percent 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 by ten percent or more below the Base Load, the Customer will be charged the fixed price for all usage and shall be charged for hedging, cash out costs, settlement or balancing costs related to the difference between the base load minus 10% and the actual consumption. All calculations will be performed on a per account basis. If there is a material adverse change in the business or financial condition of Customer (as determined by East at its discretion) or if Customer fails to meet its obligations under this Agreement or pay or post any required security deposit, then, in addition to any other remedies that it may have, East may terminate this Agreement upon 15 days’ written notice to Customer or, consistent with East’s right to bill you directly or bill you through the utility, East may at your cost, transfer the account(s) to the utility “POR” (Purchase of Receivables) program if said accounts are not already in the program.
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, a cancellation fee 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 12 month period as the volumes used in determining damages. Notwithstanding the foregoing, for all residential customers and commercial customers solicited through door-to-door marketing, the early termination fee will be no greater than $100 if the remaining term is 12 months or less and $200 if the remaining term exceeds 12 months.
Customer may receive a single bill for both commodity and delivery costs from either East or the LDC, or each of 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, and Customer will pay each invoice by bank wire or ACH in full within 20 days of the invoice date or be subject to a late payment charge of 1.5% per month. 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”). 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. This Agreement may be terminated at the sole discretion of East if you fail to meet any of the terms and conditions of this Agreement, for nonpayment, or if any of the information you have provided to East is or becomes untrue. In the event of failure to remit payment when due by a residential customer, East may terminate commodity service and seek suspension of distribution service in conformance with the Home Energy Fair Practices Act (“HEFPA”). 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 NYPSC rules and regulations on the termination of service to non-residential customers, 16 NYCRR Section 13.3. A $30 fee will be charged for all returned payments. 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 2,500Dth 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.
4. Assignment. Customer may not assign its interests in and delegate its obligations under this Agreement without the express written consent of East. This contract will be binding upon any successors in interest of the customer. Customer must demonstrate that any assignee or successor is at least as creditworthy as Customer. 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 energy supplier, energy services company or other entity as authorized by the DPS.
5. Information Release Authorization. Customer authorizes East 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; account number; credit information; public assistance status; existence of medical emergencies, status as to whether Customer has a medical emergency, is human needs, elderly, blind or disabled and data applicable to cold weather periods under PSL § 32 (3); and information pertaining to PSL § 33, tax status and eligibility for economic development or other incentives. 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. Customers preferred method to be contacted by East is via Email. 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. Upon Cancellation, East shall provide a cancellation number to Customer.
6. Consumer Protections. The services provided by East to Customer are governed by the terms and conditions of this Agreement and HEFPA for residential customers. East will provide at least 15 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 DPS. Customer may obtain additional information by contacting East at 1.800.545.9155 or the DPS at 1-800-342-3377, 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: www.dps.ny.gov. You may also contact the Department for inquiries regarding the competitive retail energy market at 1.888.697.7728.
7. Cancellation. A residential Customer may rescind this Agreement within 3 business days after the signing or receipt of this Agreement, whichever comes first, by contacting East at 1.800.545.9155 or in writing. Customer is liable for all East charges until Customer returns to the LDC or goes to another supplier. 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 trued up subsequent to the final meter reading.
8. Agency-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) nominate and schedule with the interstate pipeline the transportation of Customer’s natural gas supplies from the Sales point to the Delivery Points, and with the LDC for the transportation of the Customer’s natural gas supplies from the Delivery Points to the Customer’s end-use premises; 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.
The Sales Points for the natural gas supplies provided under this Agreement will be a point or points located outside the State of New York 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. East agrees to 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. These services are provided on an arm’s length basis and market-based compensation is included in the price noted above.
Agency-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 New York Independent System Operator (“NYISO”) engaged in the generation, transmission and delivery of Customer electricity supplies; and (b) nominate and schedule with the appropriate entities including the LDC 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 NYISO 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 Sales Point(s).
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 is not and shall not be liable for damages caused by Force Majeure Events. Force Majeure Events shall include 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 12 months). All other remedies at law or in equity are hereby waived. 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 (contact center hours subject to change). Customer may write to East at: East, 340 Jackson Ave, Bronx, N.Y. 10454
16. Dispute Resolution (Residential). In the event of a billing dispute or a disagreement 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 DPS pursuant to its Complaint Handling Procedures (“Procedures”) or calling the DPS at 1.800.342.3377. Customer must pay the bill in full, except for the specific disputed amount, during the pendency of the dispute, and such payment shall be refunded if warranted by the decision of DPS.
Dispute Resolution (Commercial). In the event of a billing dispute or disagreement involving East’s service, Customer should contact East’s Customer Service Center as provided above. 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 will not resolve Non Residential disputes associated with the services provided under this Sales Agreement. However, the DPS will monitor inquiries and contacts from Non-Residential customers regarding energy service companies and an excessive number of confirmed complaints may result in an energy service company no longer being eligible to supply natural gas or electricity in New York State. The DPS Office of Consumer Services can be reached at: New York State Public Service Commission, Office of Consumer Services, Three Empire State Plaza, Albany, New York 12223; or by visiting www.dps.ny.gov.
17. Choice of Laws. 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.
18.Taxes and Laws. 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. East and Customer recognize that a change in any law, rule, regulation, tariff, ISO design, regulatory structure, or a change in the interpretation of the application of any of the foregoing, (“Regulatory Change”) could materially impact a term, condition or provision of this Agreement including, but not limited to price. East and Customer further recognize that the financial impact of a Regulatory Change that occurred prior to the date this Agreement was executed (“Execution Date”) may not be known until a future date. Accordingly, East retains the right to: (i) to modify this Agreement to reflect a Regulatory Change that occurs after the Execution Date; and/or (ii) pass through to Customer any capital, operating, commodity or other costs it incurs as a result of a Regulatory Change that occurred prior to the Execution Date where the (x) costs were not known or (y) Regulatory Change was not implemented until after the Execution Date. In all cases, East shall provide 30 days’ written notice of any 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 Con Edison 1-800-75CONED; Orange and Rockland at 1.877.434.4100; KeySpan 718.643.4050 (NYC) and 1.800.490.0045 (Long Island); Niagara Mohawk at 1.800.892.2345; Central Hudson at 1.800.527.2714; RG&E at 1.800.743.1701; NYSEG at 1.800.527.2714; National Fuel at 1.800.444.3130and emergency personnel. Customer should then call East at: 1.800.545.9155.
21. 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. In the case of telephonic or electronic enrollment execution shall be deemed provided pursuant to the methods authorized under the New York Uniform Business Practices.
22. 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.
23. 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 ECP&G 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 ECP&G requirements; (iii) you have received an ECP&G promotion within the past 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. ECP&G 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 ECP&G service within 90 days of your first billing cycle.
24. Renewable Energy Product. Under the Company’s renewable energy program the Customer’s electricity supply will come from renewable energy resources such as biomass, biogas, wind, solar or hydro resources in the percentage noted on page one of this Agreement.
25. 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.
26. 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.
27. 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.