Customer Agreement Terms And Conditions

1. General Terms and Conditions. The following terms and conditions in this Section 1 apply to all heating oil customers (“you” or “your”) of HOP Energy, LLC (d/b/a KoscoHeritage (“we” or “us”), the terms and conditions in Section 2 apply to all prepaid heating oil customers and the terms and conditions in Section 3 apply to all cap price customers, all in accordance with your heating oil agreement (such terms and conditions, together with your heating oil agreement, the “Agreement”):

1. Your Agreement constitutes a binding agreement between you and us, which shall be governed by the laws of the state in which the Delivery Address is located. In the event any of the terms of this Section 1 directly conflict with any of the terms in Section 2 or Section 3 herein, the terms of Section 2 or Section 3, respectively, shall govern solely with respect to such conflict. We may amend this Agreement at any time by publishing a new version of the terms and conditions at hopenergy.com. Your acceptance of heating oil deliveries from us will indicate your agreement with the terms and conditions in effect on the date of delivery. You will be notified in writing thirty (30) days prior to the effectiveness of any material changes in the terms and conditions. If any provision of this Agreement is found by a court or regulatory agency of competent jurisdiction to be invalid, void or unenforceable, the rest of this Agreement will remain valid and enforceable. Additionally, if the application to you of any provision of this Agreement violates the requirements of any law or regulation applicable to you at the Delivery Address then the provisions of such law or regulation shall apply hereunder to the extent required to comply with such law or regulation.
2. At all times during the duration of this Agreement, we must be the sole supplier of heating oil to the Delivery Address. You agree to accept deliveries by Automatic Delivery from us. We will determine when to make deliveries at our sole discretion.
3. We may terminate this Agreement upon written notice if: (i) you fail to purchase 100% of your heating oil needs at the Delivery Address from us, (ii) your account is more than 25 days past due, or (iii) you fail to provide unobstructed access to your oil fill location.
4. You may not assign this Agreement, including, without limitation, in the event that you sell the property at the Delivery Address during the term of this Agreement and move out of our service area.
5. You grant us permission to access your property at the Delivery Address to deliver heating oil pursuant to your Agreement. You will provide us a safe, accessible approach and access to the fuel container at all times. We are not responsible for claims resulting from damage to any unmarked sprinkler, electrical, septic, phone, utility or other underground lines. We are not responsible for driveway damage unless you specify to us in writing that we are prohibited from using the driveway. All deliveries may be subject to delivery fees, government fees and taxes.
6. Heating system service is by separate agreement. Unless you notify us otherwise, we will rely on your continuous representation that you have inspected your fuel 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 fuel storage system and take all actions necessary to confirm that it is in compliance with applicable legal requirements, leak-free and safe for deliveries. We shall be permitted to inspect your fuel storage system if deemed necessary by us, in our sole discretion, prior to making any delivery. We will not be liable for any damage or loss if we cannot deliver your fuel because (1) we cannot access your fuel container, (2) a dangerous or unsanitary condition exists in or around the premises, including but not limited to ice, snow, or a wild, unruly or menacing animal, (3) your storage system violates legal requirements, or (4) we are prevented by circumstances beyond our control, including, among other circumstances, those listed in Section 1(h) below.
7. We will use commercially reasonable efforts to fulfill your emergency delivery requests as soon as practicable, however, certain circumstances beyond our control may cause delay, including, among other circumstances, those listed in Section 1(h) below, and you may be charged emergency delivery fees in addition to the price per gallon for the heating oil delivered.
8. You acknowledge that we may be prevented from supplying heating oil at the agreed to price due to factors beyond our control. You agree that we shall not be liable for any failure to supply heating oil at the agreed to price to the extent that any such failure is due to any such factors, including, but not limited to, (1) failure of public utilities, common carriers or suppliers to provide necessary raw materials, energy or other supplies or services to us at our normal supply or service locations or at all, (2) unusually severe weather conditions; (3) fires, explosions, floods or other acts of God; (4) war, civil commotion, riots or labor unrest; and (5) requirements of applicable federal, state, local or foreign governmental laws, rules, regulation, taxes or orders. We agree that if we suspend supplying heating oil at the agreed to price due to any such factor, we will make reasonable efforts to resume supplying heating oil at the agreed to price as soon as possible.
9. LIMITATION OF LIABILITY; WAIVER OF SUBROGATION: IN NO EVENT SHALL WE BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR SAVINGS OR ENVIRONMENTAL DAMAGES) HOWEVER CAUSED, EVEN IF WE HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE SHALL NOT BE LIABLE FOR THIRD PARTY CLAIMS OR FOR DIRECT DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, ENVIRONMENTAL DAMAGES), EVEN IF WE HAVE BEEN ADVISED OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF SUCH CLAIMS OR DAMAGES. IN NO EVENT SHALL OUR AGGREGATE LIABILITY TO YOU OR THIRD PARTIES UNDER THIS AGREEMENT OR OTHERWISE EXCEED $1000 OR THE PRICE PAID BY YOU UNDER THIS AGREEMENT IN THE IMMEDIATELY PRECEDING SIX (6) MONTHS. Any and all suits and actions against us, whether based in contract, tort, or otherwise (including but not limited to for personal injury or property damage), in any way related to this Agreement must be commenced within one (1) year of the events giving rise to the cause of action. To the extent any loss or damage is covered by insurance, you waive any rights of recovery (including any rights of subrogation) against us, and you agree to submit all claims to the fullest extent under all applicable insurance. We shall not be responsible for damages for failure to deliver heating oil to vacant or unattended premises (in this Agreement, the term “vacant or unattended premises” means a location at which no adult occupant is present for at least twenty-four (24) consecutive hours).
10. In the event we hire an attorney or collections agency to collect your unpaid balances, you agree to pay, in addition to your balance, all costs of collection as permitted by law, including without limitation, reasonable attorney and collection agency fees and court costs. Our election to accept late payment, partial payment and payment marked “payment in full,” or to otherwise waive your breach of this Agreement, shall not constitute a waiver of our legal rights and remedies herein.

2. Prepaid Heating Oil Customers. The following terms and conditions in this Section 2 apply to all customers who have signed a prepaid heating oil agreement with us:

1. If you use more heating oil than the Prepaid Gallons during the Pricing Period, we will continue to Automatically Deliver heating oil to you, except that any gallons in excess of the Prepaid Gallons will be sold to you at our prevailing retail price for home heating oil that is in effect at the time of delivery.
2. This Agreement will expire at the end of the Pricing Period without further notification, whether or not you have used all of the Prepaid Gallons. After this Agreement expires, we will continue to Automatically Deliver heating oil to you, except that any gallons delivered after this Agreement has expired will be sold to you at our prevailing retail price for home heating oil that is in effect at the time of delivery until such time as a new signed agreement is received or you provide us with a written request to terminate deliveries. Written request may be by postal letter to the following address. KoscoHeritiage, 625 Sawkill Rd, Kingston, N.Y., 12401. You will remain responsible for all of your purchases before we receive notice of the cancellation.
3. If (i) you have not taken delivery of the full amount of Prepaid Gallons during the Pricing Period, (ii) we terminate this Agreement for any of the reasons listed in paragraph 1(c) above, or (iii) you terminate this Agreement before the end of the Pricing Period (including as a result of you moving out of our service area), you will have breached this Agreement and caused us damages. In each of these cases, you will be liable to us for liquidated damages, as described in the next paragraph.
4. Liquidated Damages Provision. Our damages in each of the circumstances listed in paragraph 2(c) will include our costs of purchasing the required futures oil contracts or similar commitments, our administrative costs and our lost profits. However, at that time our actual damages will be difficult or impossible to calculate. Therefore, you agree that if this Agreement is terminated or expires as set forth above, you will pay to us a $350 early termination fee, which early termination fee will be prorated based on the remaining number of gallons of the Prepaid Gallons that we have not delivered at the time of the termination or expiration compared to the total number of Prepaid Gallons, and will no longer apply after we have completed deliveries of all of the Prepaid Gallons (the “Damages”), which you agree is a reasonable estimate of our damages.
5. Unless you notify us in writing that you would like a refund, any remaining Prepaid Amount (less our Damages) for unused gallons on account after termination or expiration of this Agreement will automatically be applied to the next year’s prepay program, if applicable, or to future purchases at our prevailing retail price for home heating oil that is in effect at the time of delivery.

3. Cap Price Customers. The following terms and conditions in this Section 3 apply to all customers who have signed a cap price program agreement:

1. You agree to prompt payment terms of 25 days throughout the duration of this Agreement. Accounts over 25 days late shall forfeit their contracted pricing in our sole discretion. Even if we have exercised our discretion and allowed you to keep your contracted pricing following a failure to pay your account within 25 days, your contracted pricing will still be subject to forfeiture in the event of any subsequent failure to pay your account within 25 days. All outstanding balances and charges must be paid in full before you may participate in any pricing program.
2. If you are enrolled in the Budget Payment Program, you must remain current on all payments in order to continue to receive the contracted pricing. Any accounts that are not current shall forfeit their contracted pricing in our sole discretion. Even if we have exercised our discretion and allowed you to keep your contracted pricing following a failure to remain current on all payments, your contracted pricing will still be subject to forfeiture in the event of any subsequent failure to remain current on all payments. All outstanding balances and charges must be paid in full before you may participate in any pricing program.
3. The cap price program fee is due at the time of signing of this Agreement and is non-refundable.
4. The agreed upon cap price will expire at the earlier of the end of the Pricing Period or when all of the contracted gallons stated in your Agreement are delivered to you without further notification and subsequent gallons delivered will be made at the prevailing retail price for home heating oil in effect at the time of delivery.
5. Upon expiration of this Agreement, you agree to remain on Automatic Delivery at our prevailing retail price for home heating oil that is in effect at the time of delivery until such time as a new signed agreement is received or you provide us with a written request to terminate deliveries. Written request may be by postal letter to the following address: You KoscoHeritiage, 625 Sawkill Rd, Kingston, N.Y., 12401. You will remain responsible for all of your purchases before we receive notice of the cancellation.

4. Definitions.

1. “Automatic Delivery” or “Automatically Deliver” means we will deliver heating oil to you automatically, at such times as we determine in our sole discretion, without any requirement to receive a specific delivery request from you, and we will continue to deliver heating oil to you automatically, until such time as you provide us with a written request to terminate deliveries by postal letter to the following address: KoscoHeritiage, 625 Sawkill Rd, Kingston, N.Y., 12401.
2. “Delivery Address” means your address listed on your heating oil agreement for delivery of heating oil.
3. “Prepaid Amount” means the total amount that you are prepaying stated on your prepaid heating oil agreement.
4. “Prepaid Gallons” means the number of gallons of heating oil that you are agreeing to buy during the Pricing Period at the Prepaid Rate stated on your prepaid heating oil agreement, and means the maximum number of gallons of heating oil that we are required to deliver to you at the Prepaid Rate.
5. “Pricing Period” means (i) for prepaid heating oil customers, the duration of time stated on your prepaid heating oil agreement during which your Prepaid Gallons can be purchased, and (ii) for cap price customers, the duration of time stated on your heating oil agreement that the agreed upon cap price stated on your heating oil agreement is applicable to your heating oil purchases.
6. “Prepaid Rate” means the prepaid purchase price per gallon stated on your prepaid heating oil agreement.