TERMS & CONDITIONS (ELECTRICITY)
Agreement To Sell And Purchase Energy: This is a binding agreement (“Agreement”) between New Wave Energy (“New Wave”, “NWE” or “Supplier”) and the customer referenced above (“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 coordinate the sale and Customer agrees to purchase and receive the quantity of natural gas necessary to meet Customer’s requirements at the Customer’s facilities at the rate and for the terms as described in the Agreement. Supplier will arrange for the delivery of natural gas service to the respective local distribution utility or utilities (“LDC”, “Utility”, “Utility/LDC”) 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 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. The Customer’s LDC will continue to provide all emergency repairs and services. NEW WAVE is not affiliated with and does not represent Customer’s Utility.
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 terminated by the applicable effective end date to fulfill the full specified term of this Agreement, or by the Supplier at its sole discretion (the “Initial Term”). Automatic Renewal: Unless terminated by the Customer at least thirty (30) days prior to the end of the Initial Term, this Agreement will automatically renew for additional 12-month successive term periods at a Supplier variable rate (the “Renewal Rate”). The Supplier variable rate will be a monthly rate solely determined by NWE and may change substantially each month based on NWE’s Pricing methodology. Customer and New Wave agree that New Wave has the right to match any bonafide competing offer at the end of any Initial Term or any renewal term.
Price: Natural Gas: The price for all natural gas sold under this Agreement shall be a price which is set solely by NWE at its discretion and which shall reflect the cost of natural gas plus all applicable taxes, fees, charges or other assessments and NWE’s costs, expenses and margins. NWE may substantially change its margins each month. Customer’s price for natural gas services sold under this Agreement shall be a fixed rate as selected by Customer, a Supplier determined variable rate as selected by Customer, or a NYMEX monthly contract settlement price as selected by Customer, as specified herein, plus (+) transport fees, per ccf plus (+) any fixed adders listed on the first page of this Agreement. All natural rates specified by this Agreement 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 transition charges. Material Misrepresentations – Customer acknowledges that the Supply Price offered pursuant to any Transaction hereunder is based in part on Customer representations as stated on page one (1) of this Agreement. For any costs incurred, as a result of any variance in the estimated annual ccf 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 representations on page one (1) that materially impacts Supplier costs or profits, Supplier reserves the right to pass through such costs; or to terminate the Agreement with thirty (30) days written notice to Customer as Supplier deems appropriate.
Fees: For Tampa Electric Co/People’s Gas (“TECO”) customers, the Load Factor Adjusted Release Rate (NCTS Rider Adder), will be passed through to Customer without markup. For all LDC’s, there is an up to $30.00 activation fee per meter for all migrating customer accounts and all new customer accounts. This fee and any others that may apply shall be added to and recouped through one or more of Customer’s initial natural gas supply invoices as issued by NWE. A listing of all service locations, which this Agreement shall apply to and be binding upon, is attached hereto as Addendum A: Additional Accounts (“Addendum A”).
Agreement Volume and Customer Usage: Subject to the Terms and Conditions of this Agreement, NWE agrees to sell and deliver, and Customer agrees to purchase and accept the quantity of natural gas, as estimated by NWE, necessary to meet Customer’s requirements based upon consumption data obtained by NWE from the delivery schedule of Customer’s LDC, or as calculated and estimated internally by NWE if such data from Customer’s LDC is not readily available, and/or as reflected on Addendum B of this Agreement. NWE reserves the right to issue estimated volumes and estimated invoices for purchase and payment by Customer to compensate NWE for any missing or inaccurate data provided or unprovided by Customer’s LDC.
Billing, Credit and Payments: Customer will be billed separately by NWE each month for natural gas supply services and any other services related to this Agreement or selected by Customer. Billing options are at the sole discretion of the Supplier and may change. Customer acknowledges that the Supplier’s ability to bill Customer is exclusively dependent on the LDC’s ability to accommodate Supplier with all necessary information, including meter readings. Should the absence of such information from the Utility 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) to reconcile any disputes, differences, or discrepancies between estimated consumption and actual consumption. Customer will pay each invoice in full, to Supplier’s address set forth on the Agreement, within fifteen (15) days from the date of each invoice. Late and overdue payments shall be subject to a late payment fee which will be assessed at the lesser of: (i) fifteen percent (15%) of the balance of the total delinquent bill per month; or (ii) the maximum amount allowed by law. Customer will be charged twenty ($20) dollars for returned payments. If Customer fails to pay any amount when due, including early termination fees, Customer will be responsible for all of Supplier’s reasonable costs of collection, including accumulated interest, and any and all attorney’s fees. 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. Failure by Customer to make payment, in accordance with this provision, constitutes a breach of this Agreement and Supplier may terminate this Agreement and collect any and all past due amounts. This Agreement and any billings, invoices and payments associated with this Agreement shall not be subject to any audit by a third-party as authorized or as contracted by Customer. Customer will be entitled to a refund of any substantial overcharges discovered within twelve (12) months after such billing date if Customer makes a claim within two (2) months of discovery from the billing date. Supplier will likewise be 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 (2) months of discovery. LDC’s have the exclusive ability to disconnect Customer’s service. The Supplier does not have this ability or authority. Failure to make full payment of charges due as outlined herein and sent via invoice will be grounds for disconnection in accordance with regulatory rules on termination of service to non-residential customers. In all circumstances, Bankruptcy and/or Pacer notifications shall not shield Customer for Customer’s obligations under this Agreement
Acceptable Methods of Payment: Unless otherwise agreed upon, Customer shall pay Supplier for services under this Agreement via auto-payment through ACH, credit card, or other acceptable form of bank draft. Customer will use the enclosed Addendum C: Auto-Payment Authorization Form (“Addendum C”) to designate and authorize their method of payment and hereby authorizes NWE to draft Customer’s account for the full balance reflected on Customer’s invoice before or by fifteen (15) days of issuance of said invoice.
Delivery and Title: New Wave will deliver all natural gas 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 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 natural gas and responsible for any injury, damage, or loss.
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, purchase of accounts receivables program or billing services agreement, and may assign this Agreement and the rights and obligations there under, to another energy supplier, energy services company, backup service providers, or other entity without Customer’s consent. If Customer is assigned, controlled, is sold, or is transferred to another party, this Agreement shall survive and shall transfer to the other party even in an asset sale.
Account Adds/Drops: Customer may decide to add or drop one (1) or more qualified accounts throughout the life 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 in service. When Customer chooses to add a new account to the agreement due to a purchase, sale, or lease of new metered space, the Customer shall provide New Wave with Approved Documentation demonstrating the reason for adding new service. If Customer decides to drop one (1) or more accounts from this Agreement without providing Approved Documentation, Customer will be liable to Supplier for an Account Drop Fee for each account dropped, to be calculated in the same way as this Agreement’s Early Termination Fee and prorated according to the usage applicable to the Account(s) dropped.
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; or receives any other form of allocated energy not within scope of this Agreement, it will constitute a Material Change and an Event of Default, and at Supplier’s discretion, the rate may be reassessed.
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, 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.
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, constitute or guarantee the savings reflected. Cost Savings Analyses are calculated based upon past usage data authorized by the Customer for the Supplier to retrieve, orally or written, obtained from the Utility and authorized by the Customer, or by a Utility bill provided by the 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 will 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 which are hereby waived, whether or not there was actual knowledge of such possible damages, or if such damages could have been reasonably foreseen. The limitations apply without regard to the cause or responsibility of any liability or damage.
Bid Provision: If this Agreement is attended, offered during, or is a response to a bid, Request for Proposal, or any other evaluative process then Supplier has the right to adjust this Agreement and rate offering subject to the actual execution date of said Agreement. Supplier reserves the right to reject this Agreement if the rate offering is no longer valid for the date and time in which it is executed. Rates are subject to a refresh due to market volatility.
Indemnity: Customer assumes responsibility for the natural gas service provided hereunder after it leaves the Utility’s lines at the Delivery Zone(s), as well as for the wires, apparatus, and appurtenances used in connection therewith, whether located at or beyond the Delivery Point. Each active Party shall indemnify, protect, defend and hold harmless the other Party 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.
Governing Law: 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 Florida with a venue in the County of Hillsborough, FL. This Agreement shall be construed under and shall be governed by the laws of the State of Ohio without regard to the application of its conflicts of law principles.
Regulatory or Market Change: This Agreement is subject to present and future legislation, orders, rules, regulations, decisions, or actions of a duly constituted governmental authority, regulatory body, Independent System Operator, PJM or market force having jurisdiction, control, or influence over this Agreement or the services to be provided hereunder. If there is a change in law, rule, regulation, tariff, regulatory structure, or market force which impacts any term, condition, or provision of this Agreement, including, but not limited to, rate, changes in transmission or capacity charges, PJM/ISO/RTO charges, FERC Order 745 costs, and collateral requirements, New Wave shall have the right to modify this Agreement to reflect such regulatory change by providing 30 days’ written notice to the Customer and to impose pass-through charges, line-items, or other related charges to Customer and Customer agrees to pay such charges. Customer acknowledges that the Agreement Price agreed upon may be adjusted from time to time in accordance with this provision, agrees to be responsible for such revised level of the Agreement Price.
Emergencies, Outages, & Utility Quality and Consistency: The Utility will continue to operate and maintain the infrastructure, including but not limited to, electric transmission lines, wires, pipelines and apparatuses. The Utility is still responsible for upkeep, emergency services, and outages. The 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 local Utility at the emergency service number provided by the Utility.
Confidentiality: The contents of this Agreement, including but not limited to price and pricing terms, and all other documents exchanged between the Supplier and Customer related to this Agreement are confidential and shall not be disclosed to any third party without mutual written consent of the Parties. 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 the 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. If the parties are unable to resolve the disputes, claims, or controversies through negotiation, the parties agree that the disputes, claims, or controversies shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Whether residential or non-residential, the customer must pay the bill in full, except for the specific disputed amount, during the pendency of the dispute. 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. No action, regardless of form, relating to this Agreement, may be brought by either party more than one year after the cause of action has accrued.
Force Majeure: New Wave will make commercially reasonable efforts to provide natural gas hereunder but does not guarantee a continuous supply of natural gas to Customer. Certain causes and events out of the control of New Wave (“Force Majeure Events”) may result in interruptions in service. New Wave will not be liable for any such interruptions caused by a Force Majeure Event, and New Wave is not and shall not be liable for damages caused by Force Majeure Events. Force Majeure Events shall include, but are not limited to, acts of God, fire, flood, storm, terrorism, war, civil disturbance, accidents, strikes, labor disputes or problems, cyber-security incidents, operational flow orders, sudden failure of natural gas supply, grid constraints, freezing of wells or pipelines, required maintenance work, inability to access the local distribution utility system, non-performance by the utility (including, but not limited to, a facility outage on its natural gas distribution system), or any other cause beyond New Wave’s control. Any suspension of obligations under this paragraph shall not extend the term of this Agreement. During any curtailment caused by Force Majeure, Customer’s contracted natural gas rate shall be subject to change at Supplier’s discretion.
Information Release Authorization: Customer authorizes New Wave to obtain and review information regarding Customer’s credit history from credit reporting agencies and the following information from the Utility(ies): consumption history; billing determinants; utility account number; credit information; participation in utility low income discount programs; 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 as allowed by State Law, tax status and eligibility for economic development or other incentives. Customer also authorizes NWE to engage in receiving auto-payments from Customer’s designated form of payment to cover invoices issued by NWE. 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. 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. If Customer fails to provide such assurance within five (5) business days after notice from New Wave, then New Wave shall have no obligation to supply Customer with Natural Gas and may suspend deliveries, terminate this Agreement, and all associated transactions, and liquidate any commodity purchased for delivery to Customer during future periods. Customer’s execution of this Agreement shall constitute authorization for the release of this information to New Wave. 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 New Wave at the address listed on this Agreement. New Wave reserves the right to cancel this Agreement in the event Customer rescinds the authorization.
Termination of Service: Customer will be subject to an Early Termination Fee (“ETF”) as calculated by Supplier and described hereafter, if this Agreement is terminated before the expiration of its term variable rate or fixed-rate Initial Term, or if this Agreement is terminated before expiration of a 12-month Renewal Term, or any other subsequent renewal term. Should Customer Default, Supplier shall have the right to terminate this Agreement by delivering written notice to Customer, and to indicate Customer’s ETF owed to Supplier. Under all circumstances, Customer shall remain obligated to pay any and all amounts owed by Customer to Supplier outlined within this Agreement within a fifteen (15) day period from the invoice date. Should Supplier Default, Customer shall have the right to terminate this Agreement by delivering written notice to Supplier. In the event that the Supplier defaults, the Customer will be automatically assigned to the Utility, another energy supplier, energy services company, or terminated altogether. Non-residential customers are subject to an ETF equal to the projected remaining quantity of ccf to be consumed by the customer for the remainder of the current term, as calculated by the Supplier at the greater of the estimated annual usage, calculated by Supplier, or the most-recently available utility usage data, multiplied by the agreed upon rate within this Agreement, or the amount New Wave could resell such related services or energy quantities at the time of Customer cancellation, as calculated by Supplier, or the maximum allowed by law, plus all applicable costs, taxes and fees (including attorney’s fees and court costs) incurred by New Wave as a result of Customer’s termination.
Addendum(s): This Agreement will be accompanied by, but not limited to the following Addendum(s): ADDENDDUM X: TECO/LDC Letter of Authorization Form (“Addendum X”), ADDENDUM A: Additional Accounts (“Addendum A”), ADDENDUM B: Customer Estimated Volumes (“Addendum B”), and ADDENDUM C: Customer Auto-payment Authorization Form (“Addendum C”). Addendum X shall serve as this Agreement’s Cover Page(s) and shall authorize NWE to switch Customer’s natural gas supply services from the LDC to NWE and bill Customer separately and accordingly. Addendum A shall represent an accurate list of LDC accounts Customer has provided NWE and has authorized NWE to provide natural gas supply and other energy related services as outlined by this Agreement. Addendum B shall represent monthly volumetric natural gas usage that the Customer consumes as represented by the Customer, or as obtained from the Customer’s LDC, or as estimated by NWE through its interactions with the Customer and/or the LDC and may or may not be included as part of this Agreement. Addendum C shall represent a payment authorization form allowing NWE to auto-draft the Customer’s selected payment method to pay invoices issued by NWE to Customer.
Entire Agreement: This signed Agreement (“Written Authorization”), or the online or voice recording authorizing Customer’s decision to take service from New Wave (“Online Enrollment”, “Voice Authorization” or “TPV”), coupled with these Terms and Conditions, is binding and is all encompassing 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 Parties, whether written or oral, with respect to the subject matter herein. If any provision of this Agreement, in whole or in part, is held by a court or regulatory agency of competent jurisdiction to be invalid, void, or unenforceable, the remaining conditions shall continue in full force and effect.