Ohio - New Wave

TERMS & CONDITIONS (ALL UTILITIES EXCEPT DOMINION EAST OHIO)

Background: Contract version number (2023.03.17). This Agreement is entered into by and between New Wave, a certified Competitive Retail Electric Service (“CRES”) and Competitive Retail Natural Gas Service (“CRNGS”) Supplier, and Customer, under which Customer shall obtain electricity generation and/or natural gas supply service from New Wave. New Wave is certified by the Public Utilities Commission of Ohio (“PUCO”) to offer and supply electricity generation and natural gas services in Ohio. New Wave’s PUCO certificate number for electricity generation supply is 17-1185E and 17-579G for natural gas. Customer’s electricity generation and/or natural gas supply prices and charges are specified in this Agreement. The Federal Energy Regulatory Commission (“FERC”) regulates electricity transmission prices and services. The PUCO regulates distribution prices and services. The Customer’s local distribution company (“Utility”, “LDC”, “EDC”) will continue to deliver electricity or natural gas to Customer and provide all emergency repairs and services. New Wave is not affiliated with and does not represent Customer’s Utility.

Agreement To Sell And Purchase Energy: This Agreement is a binding contract between New Wave and the Customer under which, starting on the next meter read date after the requested Start Month listed above, or on the next available meter read date occurring after execution of the Agreement, and unless stated otherwise, New Wave agrees to sell and Customer agrees to purchase and receive the quantity of electricity and/or natural gas necessary to meet Customer’s requirements at the Customer’s facilities associated with the Account(s) listed within this Agreement at the rate and on the terms described in this Agreement. Supplier will arrange for the delivery of electric and/or natural gas service to the respective Utility(ies) for delivery to Customer’s facilities as specified in this Agreement. New Wave, in its sole discretion, is authorized to select on behalf of Customer such sources of electric generation or natural gas procured as it deems appropriate for the Customer’s location(s). Customer authorizes New Wave to execute on its behalf any documents necessary to effectuate any such election, and Customer authorizes New Wave, and designates New Wave as its agent, to enroll the Customer’s location(s) with its Utility(ies) for supply services consistent with this Agreement. Subject to the individual Utility(ies) enrollment schedules, the switch from Customer’s Utility(ies) to New Wave’s supply may not reflect on Customer’s invoices for a period of up to two (2) full billing cycles.

Term: This Agreement shall commence as of the date Customer’s notice regarding the change of Customer’s provider to Supplier is deemed effective by the Utility(ies) and shall continue until the applicable effective end date to fulfill the full term specified on page one of this Agreement (the “Initial Term”). For Residential and Small Commercial customers, this Agreement will automatically renew, upon completion of the Initial Term, to a month-to-month term contract priced at the variable rate described in this Agreement (the “Renewal Rate”), unless terminated by Customer at least thirty (30) days prior to the end of the Initial Term. Thereafter, customer may terminate this Agreement at any time without penalty. For Mercantile Customers, as defined in Ohio Administrative Code Sections 4901:1-21-01 (electric) and 4901:1-29-01 (gas), unless terminated by Customer at least thirty (30) days prior to the end of the Initial Term, this Agreement will automatically renew for successive 12-month terms at the variable rate described in this Agreement (the “Renewal Rate”). Customer and New Wave agree that New Wave has the right to match any Bonafede competing offer at the end of any Initial Term or any Renewal Term. For Residential and Small Commercial customers, New Wave will provide notice to Customer, not less than forty-five (45) days nor more than ninety (90) days prior to the renewal date, of the renewal terms and Customer’s option to reject the renewal terms if such terms are different than those provided herein. NEW WAVE CAN RENEW THIS CONTRACT WITHOUT CUSTOMER’S AFFIRMATIVE CONSENT EVEN WHEN THERE IS A CHANGE IN THE RATE OR OTHER TERMS AND CONDITIONS.

Charges: The rates specified by this Agreement are limited to non-Utility charges and therefore do not include taxes, GRT, or regulated charges from the Utility, including, but not limited to T&D Charges, customer account fees, or other utility charges.

Material Misrepresentations (Mercantile Customers): Mercantile Customers acknowledge that the supply price offered pursuant to any transaction hereunder is based in part on Customer’s representations as stated on page one (1) of this Agreement. For any costs incurred as a result of any variance in the estimated annual kWh/Ccf by the Customer’s Utility or as represented by Customer on page one (1) of this Agreement, Supplier reserves the right to pass through such costs. For any costs incurred as a result of a variance in any other Customer representation on page one (1), or as otherwise represented, that materially impacts Supplier’s costs or profits, Supplier reserves the right to pass through such costs. Alternatively, Supplier may cancel this Agreement, without penalty, and return the Customer back to Customer’s Utility immediately. This paragraph does not apply to residential or small commercial customers.

Fixed Rate Or Fixed Energy: Electricity (“Fixed Products”): Any Fixed Products offered with this Agreement shall be calculated as the per kilowatt hour (“kWh”) rate specified on page one (1) of this Agreement or as stated in the Voice Authorization. Natural Gas: The Fixed Rate shall be calculated as the per one-hundred (100) cubic feet (“CCF”) specified on page one (1) of this Agreement or as stated in the Voice Authorization.

Variable Rate: The Variable Rate for electricity and natural gas is calculated on a monthly basis at New Wave’s sole discretion in response to the following pricing factors (“Pricing Factors”), plus (+) all applicable taxes: publicly available wholesale market pricing for electricity or gas supply, wholesale and retail market volatility and uncertainty, historic and anticipated weather events, historic and anticipated customer usage, legal and regulatory issues, operation costs, costs related to consumer credit or debt, historic and projected supply and hedging costs, prior meter read cycle’s pricing and balancing costs, projected customer bill amounts, service and processing fees and assessments, regulatory and compliance changes and costs, historic and anticipated competitors’ pricing and marketplace conduct, ancillary services and capacity costs, transmission costs, credit costs, balancing costs, winter reliability costs, costs associated with meeting any applicable renewable offerings, NITs, RPS, changes in law, and a profit margin (or adder) determined in the Company’s sole discretion that itself may vary from month to month.. No single factor will determine the Variable Rate charged by Supplier, and the factors considered may be weighted differently each month.

Billing And Payments: Customer will receive a single, consolidated bill (“Consolidated Bill”) for both commodity and delivery/distribution charges from the Utility(ies). Customer acknowledges that Supplier’s ability to bill Customer is exclusively dependent on the Utility’s or Independent Systems Operator’s (“ISO”’s, “PJM”, “ISO/PJM”) ability to accommodate Supplier with all necessary information, including meter readings. Should the absence of such information from the Utility or ISO/PJM exist, Customer agrees to be billed by Supplier based on estimated meter readings, and Supplier will adjust Customer’s bill the following month, or on the next bill after Supplier receives actual consumption data from the Utility(ies) or ISO/PJM to reconcile any disputes, differences, or discrepancies between estimated consumption and actual consumption. Customer will pay each invoice in full to Customer’s Utility(ies) in accordance with the terms specified by the Utility(ies). Late and overdue payments shall be subject to a late payment fee which, for Mercantile customers will be fifteen percent (15%) of the overdue balance per month, and for Residential and Small Commercial customers will be one and one-half percent (1.5%) of the overdue balance per month. Customer will be charged twenty ($20) dollars for returned payments. Supplier may cancel this Agreement for any and all late payment amounts, overdue payments, partial payments, or past due notices upon fourteen days written notice and return the Customer to Customer’s Utility. If the Parties agree to a billing date, such a date shall be subject to change in the event the Utility performs or implements a meter reading cycle in conflict with agreed upon billing/switch over date. Customer may request from Supplier up to twenty-four (24) months of Customer’s payment history for gas services rendered by Supplier without charge. Supplier is entitled to bill and to be paid for any substantial undercharges discovered within twelve (12) months after the original billing date if the billing is made within two twelve (12) months of discovery.

Delivery And Title: New Wave will deliver all natural gas and/or electricity sold under this Agreement to the PJM zone, load bus or Utility City Gate, located outside of the municipality where Customer resides (the “Delivery Point”). Title to, possession of, and risk of loss of gas and/or electricity sold under this Agreement will pass from New Wave to Customer at the Delivery Point such that the sale originates and is consummated outside of the Customer’s municipality. (For avoidance of doubt, the Delivery Point shall in all cases be located outside of Customer’s municipality, regardless of where the PJM zone or PJM load bus or Utility City Gate is located.) After delivery to the Delivery Point, Customer will be deemed to be in exclusive control and possession of the gas and/or electricity and responsible for any injury, damage, or loss related thereto.

Customer’s Right To Rescission: Residential and Small Commercial customers may rescind this Agreement, without penalty, within seven (7) calendar days (electric) or seven (7) business days (gas) following the postmark date on the Utility’s confirmation notice. Customers wishing to rescind must contact their Utility at its designated local or toll-free number. Following the expiration of the applicable rescission period, if Customer should choose to terminate this Agreement before the expiration of the Term, Customer may be subject to the early termination fee described below in the “Termination of Service” provision. Mercantile Customers have no right to rescind this Agreement without penalty.

Assignment: Customer shall not assign its rights or obligations under this Agreement in whole or in part without the prior written consent of Supplier. New Wave may sell, transfer, pledge, or assign the accounts receivable, revenues, or proceeds hereof, in connection with any financing agreement, sale of company, purchase of accounts receivables program or billing services agreement. Subject to PUCO rules and regulations, New Wave may assign this Agreement and the rights and obligations there under, to another energy supplier, energy services company, backup service providers, or other entity.

Account Adds/Drops: Customer may decide to add or drop one (1) or more qualified accounts throughout the Term of this Agreement with respect to leasing, selling, or purchasing metered space. Customer must provide notice to New Wave within thirty (30) days prior to dropping an account due to a sale or lease of contracted metered space to another party by providing New Wave with a letter from the utility, lease agreement, or another form of documentation approved by New Wave (“Approved Documentation”) demonstrating the reason for drop from service. If Customer adds a new account to the Agreement as provided herein, the Customer shall provide New Wave with Approved Documentation demonstrating the reason for adding new service. If Customer drops one (1) or more accounts from this Agreement without providing Approved Documentation, Customer will be liable to Supplier for the Early Termination Fee described herein.

Onsite Generation & Energy Allocations: If, after the date the Customer signed this Agreement, the Customer installs or intends to install onsite generation units; or engages in filing for or receiving discounted replacement energy; receives or engages in filing for a government-subsidized allocation; engages in a community Solar outside of one permitted or controlled by New Wave, or receives any other form of allocated energy not within scope of this Agreement, Supplier may terminate this Agreement at its sole discretion.

Notices: All notices and similar correspondence, including those which update or otherwise alter the Terms and Conditions of service, shall be in writing and delivered to Customer and Supplier. Supplier notices to Customer can be delivered via U.S. Mail, courier, Electronic Mail, utility bill messaging system, invoice message, or Facsimile. Customer notices to Supplier must be in writing, via U.S. Mail. Notices will be effective upon receipt by the Party to whom it is addressed.

Environmental Characteristics And Electric Generation Mix: Information regarding the generation sources and environmental characteristics of the electricity supplied by New Wave is available at www.NewWaveEnergy.com.

Cost Savings Analyses: At New Wave’s sole discretion, it may accompany this Agreement with a Cost Savings Analysis. Cost Savings Analyses are a projection of hypothetical savings and in no way guarantee the savings reflected. Cost Savings Analyses are calculated based upon past usage data authorized by Customer for Supplier to retrieve, orally or written, obtained from the Utility and authorized by Customer, or by a Utility bill provided by Customer, and future energy market projections.

Limitations Of Liability: The remedy in any claim or suit by Customer against New Wave will be solely and exclusively limited to direct actual damages, which shall not exceed the amount of Customer’s single largest monthly invoice amount in the immediately preceding twelve (12) month period. The parties agree that such remedy constitutes a reasonable approximation of the non-defaulting party’s harm or loss. Neither Party will be liable to the other for consequential, incidental, punitive, exemplary or indirect damages, including lost profit or penalties of any nature, whether or not there was actual knowledge of such possible damages or if such damages could have been reasonably foreseen. These limitations apply without regard to the cause or responsibility of any liability or damage.

Bid Provision: If this Agreement is attended by, offered during, or is a response to a bid, request for proposal, or any other evaluative process, Supplier has the right to adjust this Agreement and rate offering subject to the actual execution date of this Agreement. Supplier reserves the right to reject this Agreement if the rate offering is no longer viable for the date and time in which it is executed.

Indemnity: Customer assumes responsibility for the electric and/or natural gas service provided hereunder after it leaves the Utility’s lines at the Delivery Point(s), as well as for the wires, apparatus, and appurtenances used in connection therewith, whether located at or beyond the Delivery Point. Customer shall indemnify, protect, defend and hold harmless Supplier from and against any losses, claims, damages, liabilities, costs or expenses arising from or out of any circumstance, event, incident or action during the length agreed upon and executed herein, relating to any way to the electricity or natural gas delivered by Supplier to the Delivery Point.

Governing Law/Venue: This Agreement shall be construed under and shall be governed by the laws of the State of Ohio without regard to the application of any otherwise applicable conflicts of law principles.

Emergencies, Outages, & Power Quality And Consistency: The Utility will continue to operate and maintain the infrastructure, including but not limited to, electric transmission lines, wires, and apparatuses. The Utility is still responsible for upkeep, emergency services, and outages. Customer acknowledges that New Wave is not liable or responsible for the event of outages, utility disruptions or disconnections. If Customer encounters a situation such as a power outage, natural gas emergency or interruption, or a reduction or discontinuation of Utility service(es), Customer should contact their Utility at the emergency service number provided by the Utility.

Confidentiality: This Agreement, including but not limited to price and pricing terms and all other documents and electronic communications exchanged between the Supplier and Customer related to this Agreement, are confidential and shall not be disclosed to any third party without the prior mutual written consent of the other Party; provided, however, each Party shall have the right to make such disclosures, if any, to governmental agencies and to its own agents, attorneys, auditors, accountants, and shareholders as may be reasonably necessary, or as required by state law, subpoena, or court order. This obligation between both Parties shall continue for a period of twenty-four (24) months following the expiration or termination of this Agreement. However, the Parties acknowledge and affirm that New Wave has sole discretion to disclose and to publicize the identity of Customer as a client of New Wave and shall be entitled to display Customer’s logo on Supplier’s Website and other advertisement literature.

Dispute Resolution: The Parties shall attempt in good faith to resolve any disputes, claims, or controversies arising out of or relating to this Agreement promptly by negotiation. Customer should contact New Wave by telephone or in writing using Supplier’s contact information as provided in this Agreement or as listed on Supplier’s website (www.NewWaveEnergy.com). Any dispute or complaints relating to a Residential or Small Commercial customer may be submitted by either Party at any time to PUCO, pursuant to its Complaint Handling Procedures by calling PUCO at 1-800-686-7826 or for TTY at 7-1-1 from 8:00am to 5:00pm EST, Mon-Fri. Customer may also reach PUCO online at http://www.PUCO.ohio.gov. The Ohio Consumer’s Counsel (“OCC”) represents Residential Utility consumers in matters involving PUCO. OCC can be contacted at 1-877-742-5622 from 8:00am to 5:00pm EST, Mon-Fri, or via web at http://www.pickocc.org . If your complaint is not resolved after you have called your electric supplier and/or your electric utility, or for general utility information, residential and business customers may contact the public utilities commission of Ohio (“PUCO”) for assistance at 1-800-686-7826 (toll free) from eight a.m. to five p.m. weekdays, or at http://www.puco.ohio.gov. Hearing or speech impaired customers may contact the PUCO via 7-1-1 (Ohio relay service).

Class Action Waiver: Regardless of Customer’s status (Mercantile, Small Commercial, or Residential), any arbitration, suit, action, or other legal proceeding shall be conducted and resolved on an individual basis only and not on a class-wide, multiple plaintiff or similar basis.

Force Majeure: Neither Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to Supplier hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the reasonable control of the impacted Party’s (“Impacted Party”), including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) fire, flood, storm, earthquake, or explosion; (c) sudden failure of electric or gas supply grid constraints, freezing of wells or pipelines, or inability to access the local distribution utility system; (d) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (e) government order, law, or actions; (f) embargoes or blockades in effect on or after the date of this Agreement; (g) national or regional emergency; (h) strikes, labor stoppages or slowdowns, or other industrial disturbances; (i) non-performance by the utility (including, without limitation, a facility outage on its electricity distribution lines); (j) operational flow orders; (k) cyber-security incidents; (l) changes in economic or business conditions; or (l) other events beyond the reasonable control of the Impacted Party. However, the foregoing language notwithstanding, an epidemic or pandemic (such as the events connected with COVID-19) shall not, by itself, constitute a Force Majeure Event. Further, Force Majeure shall not include financial hardship or the inability of Customer to pay its obligations under this Agreement, regardless of circumstance and even if such inability is caused by a Force Majeure Event.

Information Release Authorization: Customer authorizes New Wave to obtain and review information regarding Customer’s credit history from credit reporting agencies and information the Utility(ies) are required to disclose under their tariffs. This information may be used by New Wave 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, or for Supplier’s own collections and credit reporting, participation in programs funded by the universal service fund pursuant to R.C. 4928.52, or assigning a customer contract to another supplier, or if such disclosure is made in accordance with applicable PUCO rules. Customer may rescind this authorization at any time by providing written notice thereof to New Wave at the address listed on this Agreement.

Creditworthiness: If at any time, Customer does not meet New Wave’s commercially reasonable creditworthiness standards, New Wave may require Customer to provide performance assurances in a form and amount reasonably acceptable to New Wave, such as a letter of credit, third-party guarantee, deposit, or prepayment, within five (5) business days after notice from New Wave.

Termination Of Service: This Agreement will automatically terminate if: (i) the requested service location is not served by Supplier, (ii) Customer moves outside New Wave’s service area, or (iii) New Wave terminates service to Customer due to Customer’s failure to pay. For fixed rate contracts, Customer shall be subject to an Early Termination Fee (“ETF”), as described hereafter, if this Agreement is terminated before the expiration of: (i) its Initial Term; (ii) a 12-month Renewal Term; or (iii) any other subsequent renewal term mutually agreed to by the Parties. Residential and Small Commercial customers are subject to an Early Termination Fee (“ETF”) of $99.00 for a contract with a remaining Term of more than one month but no greater than 12 months, or $199.00 for a contract with a remaining Term of more than 12 months. Mercantile customers are subject to an ETF equal to the projected remaining quantity of kWh and/or Ccf to be consumed by Customer for the remainder of the current term, as calculated by Supplier at the greater of (i) Customer’s estimated annual usage, calculated by Supplier or from the most-recently available utility usage data, multiplied by the agreed-upon rate within this Agreement; (ii) the amount New Wave could resell such related services or energy quantities at the time of termination, as calculated by Supplier in its sole discretion; or (iii) the maximum amount allowed by law, plus (+) all applicable costs, taxes and fees (including reasonable attorney’s fees and court costs) incurred by New Wave as a result of Customer’s termination.

Entire Agreement: This Agreement is binding and embodies the entire agreement and mutual understandings between the Parties. This Agreement (including Enrollment Consent Forms, LOAs, Riders, Addendums and any Notices and Appendences) supersedes all prior agreements and understandings between the Parties, whether written or oral, with respect to the subject matter herein. If any terms or provisions of this Agreement, in whole or in part, are held by a court or regulatory agency of competent jurisdiction to be invalid, void, or unenforceable, the remaining terms and conditions shall continue in full force and effect. This Agreement may only be modified or amended through a written agreement duly executed by the Parties.

TERMS & CONDITIONS (DOMINION EAST OHIO ONLY)

Material Misrepresentations (Mercantile Customers): Mercantile Customers acknowledge that the supply price offered pursuant to any transaction hereunder is based in part on Customer’s representations as stated on page one (1) of this Agreement. For any costs incurred as a result of any variance in the estimated annual kWh/MCF by the Customer’s Utility or as represented by Customer on page one (1) of this Agreement, Supplier reserves the right to pass through such costs. For any costs incurred as a result of a variance in any other Customer representation on page one (1), or as otherwise represented, that materially impacts Supplier’s costs or profits, Supplier reserves the right to pass through such costs. Alternatively, Supplier may cancel this Agreement, without penalty, and return the Customer back to Customer’s Utility immediately. This paragraph does not apply to residential or small commercial customers.

Fixed Rate Or Fixed Energy: Electricity (“Fixed Products”): Any Fixed Products offered with this Agreement shall be calculated as the per kilowatt hour (“kWh”) rate specified on page one (1) of this Agreement or as stated in the Voice Authorization. Natural Gas: The Fixed Rate shall be calculated as the per one-thousand (1,000) cubic feet (“MCF”) specified on page one (1) of this Agreement or as stated in the Voice Authorization.

Variable Rate: The Variable Rate for electricity and natural gas is calculated on a monthly basis at New Wave’s sole discretion in response to the following pricing factors (“Pricing Factors”), plus (+) all applicable taxes: publicly available wholesale market pricing for electricity or gas supply, wholesale and retail market volatility and uncertainty, historic and anticipated weather events, historic and anticipated customer usage, legal and regulatory issues, operation costs, costs related to consumer credit or debt, historic and projected supply and hedging costs, prior meter read cycle’s pricing and balancing costs, projected customer bill amounts, service and processing fees and assessments, regulatory and compliance changes and costs, historic and anticipated competitors’ pricing and marketplace conduct, ancillary services and capacity costs, transmission costs, credit costs, balancing costs, winter reliability costs, costs associated with meeting any applicable renewable offerings, NITs, RPS, changes in law, and a profit margin (or adder) determined in the Company’s sole discretion that itself may vary from month to month. No single factor will determine the Variable Rate charged by Supplier, and the factors considered may be weighted differently each month.

Dispute Resolution: The Parties shall attempt in good faith to resolve any disputes, claims, or controversies arising out of or relating to this Agreement promptly by negotiation. Customer should contact New Wave by telephone or in writing using Supplier’s contact information as provided in this Agreement or as listed on Supplier’s website (www.NewWaveEnergy.com). Any dispute or complaints relating to a Residential or Small Commercial customer may be submitted by either Party at any time to PUCO, pursuant to its Complaint Handling Procedures by calling PUCO at 1-800-686-7826 or for TTY at 7-1-1 from 8:00am to 5:00pm EST, Mon-Fri. Customer may also reach PUCO online at http://www.PUCO.ohio.gov. The Ohio Consumer’s Counsel (“OCC”) represents Residential Utility consumers in matters involving PUCO. OCC can be contacted at 1-877-742-5622 from 8:00am to 5:00pm EST, Mon-Fri, or via web at http://www.pickocc.org. If your complaint is not resolved after you have called your electric supplier and/or your electric utility, or for general utility information, residential and business customers may contact the public utilities commission of Ohio (“PUCO”) for assistance at 1-800-686-7826 (toll free) from eight a.m. to five p.m. weekdays, or at http://www.puco.ohio.gov. Hearing or speech impaired customers may contact the PUCO via 7-1-1 (Ohio relay service).

Termination Of Service: This Agreement will automatically terminate if: (i) the requested service location is not served by Supplier, (ii) Customer moves outside New Wave’s service area, or (iii) New Wave terminates service to Customer due to Customer’s failure to pay. For fixed rate contracts, Customer shall be subject to an Early Termination Fee (“ETF”), as described hereafter, if this Agreement is terminated before the expiration of: (i) its Initial Term; (ii) a 12-month Renewal Term; or (iii) any other subsequent renewal term mutually agreed to by the Parties. Residential and Small Commercial customers are subject to an Early Termination Fee (“ETF”) of $99.00 for a contract with a remaining Term of more than one month but no greater than 12 months, or $199.00 for a contract with a remaining Term of more than 12 months. Mercantile customers are subject to an ETF equal to the projected remaining quantity of kWh and/or MCF to be consumed by Customer for the remainder of the current term, as calculated by Supplier at the greater of (i) Customer’s estimated annual usage, calculated by Supplier or from the most-recently available utility usage data, multiplied by the agreed-upon rate within this Agreement; (ii) the amount New Wave could resell such related services or energy quantities at the time of termination, as calculated by Supplier in its sole discretion; or (iii) the maximum amount allowed by law, plus (+) all applicable costs, taxes and fees (including reasonable attorney’s fees and court costs) incurred by New Wave as a result of Customer’s termination.