New York

FIXED & VARIABLE RATE PROGRAM (ELECTRICITY AND NATURAL GAS) – COMMERCIAL CUSTOMERS

CUSTOMER DISCLOSURE STATEMENT & TERMS AND CONDITIONS

1. Background. This Electric and/or Natural Gas supply services agreement (“Agreement”, “Contract”) is entered into by and between New Wave Energy, LLC (“New Wave”, ”NWE”, “Supplier”), an independent electric and/or Natural Gas supplier, and the customer (“Customer”), under which Customer shall obtain Electric and/or Natural Gas supply service and begin enrollment with NWE (“Agreement”). NWE is licensed by the New York State Public Service Commission (“NYPSC”) to offer Electric and/or Natural Gas supply services in New York. Your Electric and/or Natural Gas prices and charges will be set by NWE. The Federal Energy Regulatory Commission regulates Electric and/or Natural Gas transmission prices and services. The NYPSC regulates distribution prices and services. Unless otherwise determined, you will continue to receive your bill from your Local Distribution Company (“LDC”, “Utility”) for all Electric and/or Natural Gas supply and delivery charges. Your LDC will continue to provide all emergency repairs and services. NWE is not affiliated with and does not represent your LDC.
2. Agreement To Sell And Purchase Energy. This is a binding agreement (“Agreement”) between New Wave Energy, LLC (“New Wave” or “Supplier”) and the Customer (“Customer”), listed above,  herein, and/or on an attached Addendum 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 electricity and/or 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 electric and/or natural gas service to the respective local distribution utility or utilities (“Utility”) 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 and/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.
3. Contract Duration. 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”). 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 term periods at a Supplier variable rate (the “Renewal Rate”). Customer understands this section as inclusive of the auto-renewal section of this agreement and hereby waives NY GBL 5-903 and all Customer’s equities and rights under NY GBL 5-903. Either party may cancel or terminate this Agreement by providing 30 days’ advance written notice of termination to the other party subject to Customer’s responsibility for any Early Termination Fees and any other payments due from Customer to Supplier. 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.
4. Price & Product Selection. Customer’s specific rate and price plan are disclosed at the time of enrollment or renewal and confirmed in the Customer Disclosure Statement or Energy Service Agreement. Supplier’s Price Plans for electricity and/or natural gas are described below and are subject to change. Taxes & Other 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 transition charges. If, due to a change in market conditions, Supplier wishes to raise or lower the price per kWh and/or ccf charged to the customer under this Agreement, it may do so without Customer’s consent.

Fixed Rate Or Fixed Energy (“Fixed Products”) For Electricity: Any Fixed Products offered with this Agreement  shall be calculated as the per kilowatt hour (“kWh”) rate specified on the Customer Disclosure Statement of this Agreement; or as stated herein; or as stated in the Voice Authorization, plus (+) (i) all applicable taxes; (ii) all other amounts related to the purchase and delivery of electric energy to the Delivery Point(s); (iii) all pass-through charges;  (iv) al Network Integration Service Rates (NITs); (v) all capacity, ancillary services, losses, Auction Revenue Rights (“ARR”), Renewable Portfolio Standards (“RPS”) compliance costs, and any other miscellaneous recovery charges (including, but not limited to, ISO/RTO/PJM electric-related assessments); (vi) Consumption Activity Taxes (“CAT”);  (vii) Transmission Owner Transmission Solutions (“TOTS”) and (viii) Supplier margin. For Natural Gas: The Fixed Rate shall be calculated as the per one-hundred (100) cubic feet (“Ccf”) specified) on the Customer Disclosure Statement of this Agreement; or as stated herein; or as stated in the Voice Authorization of this Agreement, or as determined by Customer’s LDC, plus (+) (i) all applicable taxes, (ii) transportation or delivery fees related to the delivery of natural gas to the Delivery Point(s); (iv) Operational Flow Order costs, (v) pipeline fees, (vi) weatherization charges, (vii) storage and other carrying costs, (viii) Supplier margin, and (ix) any fixed adders stated on the Customer Disclosure Statement of this Agreement; or as stated herein; or as stated in the Voice Authorization. Natural Gas Fixed Adder Product (NYMEX Variable Rate Product): If Supplier and Customer agree on a natural gas rate that includes a fixed adder, or NYMEX+ component, the rate delivered to customer will be a rate calculated using the New York Mercantile Exchange (“NYMEX”) monthly settlement rate as published by the Chicago Mercantile Exchange (“CME Group”); or another liquid trading point identified within this Agreement; or another trading point as determined by Supplier plus (+) (i) all applicable taxes, (ii) transportation or delivery fees related to the delivery of natural gas to the Delivery Point(s); (iv) Operational Flow Order costs, (v) pipeline fees, (vi) weatherization charges, (vii) storage and other carrying costs,  (viii) Supplier margin.

Variable Rate: The Variable Rate for electricity and/or natural gas is calculated on a monthly basis at New Wave’s sole discretion in response to numerous pricing factors (“Pricing Factors”), plus (+) all applicable taxes. Pricing Factors include, but are not limited to, publicly available wholesale market pricing for electricity and/or natural 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, and applicable pricing reset dates. Additionally, Pricing Factors may include the following additional costs: ancillary services and capacity costs, transmission costs, credit costs, balancing costs, winter reliability costs, costs associated with meeting any applicable renewable offerings, NITs, RPS, TOTS, changes in law, and a profit margin (or adder) determined in the Company’s sole discretion that itself may vary from month to month. This list of Pricing Factors is not exhaustive. No single factor will determine the Variable Rate charged by Supplier, and the factors considered may be weighted differently each month. Some Pricing Factors may be estimated or projected. There is no guarantee that those estimates or projections will be accurate. 

Renewable Energy Price Plans: 

For Electricity: For Supplier’s renewable energy products, NWE will offset the Customer’s energy usage by purchasing Renewable Energy Credits (“RECs”) associated with the Customer’s electricity usage at a percentage solely determined by the Supplier. NWE will (directly or indirectly) retire, on Customer’s behalf, RECs resulting from electricity generated from renewable energy sources, which may include solar, wind, hydro, or any other renewable attribute in an amount sufficient to match Customer’s annual consumption from the LDC. Customer will not have electricity from a specific generation facility or renewable energy source delivered directly to Customer’s meter. NWE will not be liable to Customer or other parties for advertising assertions associated with NWE’s renewable offers.

For Natural Gas: Carbon Offsets. For Supplier’s carbon off-set natural gas products, NWE will offset the carbon emissions associated with the Customer’s natural gas usage at a percentage solely determined by the Supplier through the use of any approved carbon offset technology or mitigant including one or more of the following: 1. Purchase and retirement of RECs from any carbon-neutral energy source. 2. Purchase and retirement of carbon credits through reputable standards such as The Verified Carbon Standard (VCS), The Gold Standard, The Climate Action Reserve, and/or American Carbon Registry and/or (3) other economically available products, such as reforestation. The carbon emissions estimations are based on current data & assumptions from the U.S. Environmental Protection Agency (https://www.epa.gov/ghgemissions/global-greenhouse-gas-emissions-data Updated 5/30/2020). Purchase of carbon offset products does not actually reduce the CO2 emissions associated with customer’s energy consumption but helps offset the release of the applicable number of metric tons of CO2 emissions elsewhere.

5. Material Misrepresentations. Customer acknowledges that the supply price offered pursuant to any transaction hereunder is based in part on Customer’s representations as stated 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 as stated on the Customer Disclosure Statement of this Agreement; or as stated herein; or as stated in the Voice Authorization. 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.
6. Billing And Payments. Unless otherwise unavailable, 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, and/or other transportation services administrators such as pipelines, 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 non-residential, commercial, or Mercantile customers will be fifteen percent (15%) of the overdue balance per month; or (ii) the maximum amount allowed by law. Customer will be charged twenty ($20) dollars for returned payments. Alternatively, Supplier can cancel this Agreement for any and all late payment amounts, overdue payments, partial payments, or past due notices immediately and return the Customer back to Customer’s Utility. 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 reasonable 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. Customer may request from Supplier up to twenty-four (24) months of Customer’s payment history for natural gas services rendered by Supplier without charge. 

Failure by Customer to make payment, in accordance with this provision, constitutes a breach of this Agreement and Supplier may terminate this Agreement immediately and collect any and all past due amounts, plus interest and reasonable attorney’s fees related to the breach. 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 twelve (12) months of discovery. Local Utility companies have the exclusive ability to disconnect Customer’s service. Supplier does not have this ability or authority. Failure to make full payment of charges due as outlined herein and sent via invoice, and failure to pay electricity or natural gas utility charges, may result in Customer being disconnected by the utility. 

7. Delivery And Title. New Wave will deliver all electricity and/or natural gas sold under this Agreement to the ISO load bus or Utility City Gate, located outside of the municipality where Customer resides (“Delivery Point”). Title to, possession of, and risk of loss of electricity and/or natural 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 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 ISO 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 electricity and/or natural gas and responsible for any injury, damage, or loss.
8. Assignment. Customer shall not assign its rights or obligations under this Agreement in whole or in part without the prior written consent of Supplier. Supplier 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, 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 this agreement is assigned, sold, or is transferred to another party, this Agreement shall survive and shall transfer to the other party even in an asset sale. 
9. 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. 
10. 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, 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. 
11. 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.
12. 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 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 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 Electricity or 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.
13. Force Majeure. New Wave will make commercially reasonable efforts to provide electricity hereunder but does not guarantee a continuous supply of electricity 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, changes in economic or business conditions, operational flow orders, sudden failure of electric or 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 electricity distribution lines), 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 electricity and/or natural gas rate shall be subject to change at Supplier’s discretion.
14. 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.
15. 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.
16. Indemnity. Customer assumes responsibility for the electric and/or 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.
17. 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 the Supplier’s contact information as provided in this Agreement. I 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. During any period of any dispute, the customer must any invoices due to Supplier, except for the specific disputed amount, during the pendency of the dispute.
18. Class Action Waiver. Any Claim permissible herein must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiffs, or similar proceeding (“Class Action”). Each of the parties expressly waives any ability to maintain any Class Action in any forum. NWE AND CUSTOMER UNDERSTAND THAT THEY ARE KNOWINGLY, VOLUNTARILY, AND WILLINGLY WAIVING THE RIGHT TO A TRIAL BY JURY AND CUSTOMER IS WAIVING THE RIGHT TO PARTICIPATE IN OR BE REPRESENTED IN ANY CLASS ACTION SUIT AGAINST SUPPLIER. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.  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.
19. 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 a 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.
20. Governing Law/Venue. 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 any otherwise applicable conflicts of law principles. Venue for any proceeding (including, but not limited to all meetings, arbitrations, dispute resolutions, depositions, motions and/or trials) shall be in Buffalo, NY and court proceedings shall be limited to a State or Federal Court located in Buffalo, NY.
21. 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, ISO, 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, or Supplier’s prediction thereof,  including, but not limited to, rate, changes in transmission or capacity charges, PJM/ISO/RTO charges, pipeline tariff or fees, FERC Order 745,  841, or 2222 costs, and collateral requirements or there is a change in business conditions, New Wave shall have the right to modify this Agreement to reflect such regulatory change by advising Customer through a bill notification, e-mail, or any other communication Supplier deems appropriate  to 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 and agrees to be responsible for such charges.
22. Material Changes In Customer Operations/Onsite Generation And/Or Energy Allocations. If, during or 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 program or project outside of one permitted, recommended or controlled by New Wave, or receives any other form of allocated energy not within scope of this Agreement and as restricted by this paragraph, it will constitute a material change and an event of default, and at Supplier’s discretion, the rate may be reassessed or Supplier may terminate this Agreement at its sole discretion.
23. 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. In the event of a gas leak, electric power outage or other emergency, please use the following toll-free numbers to directly contact your utility: Central Hudson Gas & Electric (1-800-527-2714); ConEdison (1-800-752-6633); National Fuel (1-800-444-3130); National Grid (1-800-892-2345); NYSEG (1-800-572-1131); Orange & Rockland Electric (1-877-434-4100); Orange & Rockland Gas (1-800-533-5325); Rochester Gas & Electric (1-800-743-1701).
24. Termination Of Service And Early Termination Fees. 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 other entity as authorized by the DPS. Non-residential customers are subject to an ETF equal to the projected remaining quantity of kWh and/or 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.
25. Parties Bound. This Agreement is binding upon the parties hereto and their respective successors and legal assigns. Customer and NWE have caused this Agreement to be executed by individuals authorized to bind each party, and Customer has reviewed all of the terms herein.  
26. Warranty. This Agreement, including any enrollment form and applicable attachments, as written makes up the entire Agreement between Customer and NWE. NWE makes no representations or warranties other than those expressly set forth in this Agreement, and NWE expressly disclaims all other warranties, express or implied, including merchantability and fitness for a particular use.
27. Entire Agreement. This signed Agreement (“Written Authorization”), or the online or voice recording authorizing Customer’s decision to take service from NWE (“Online Enrollment”, “Voice Authorization” or “TPV”), coupled with these Terms of Service 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. 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.

FIXED RATE PROGRAM (ELECTRICITY) – RESIDENTIAL CUSTOMERS

CUSTOMER DISCLOSURE STATEMENT & TERMS AND CONDITIONS

1. Background. This electricity supply services agreement (“Agreement”, “Contract”) is entered into by and between New Wave Energy, LLC (“New Wave”, ”NWE”, “Supplier”), an independent electricity generation supplier, and the customer (“Customer”), under which Customer shall obtain electricity generation supply service and begin enrollment with NWE (the “Agreement”). NWE is licensed by the New York State Public Service Commission (“NYPSC”) to offer and supply electricity generation supply services in New York. Your electricity generation prices and charges will be set by NWE. The Federal Energy Regulatory Commission regulates electricity transmission prices and services. The NYPSC regulates distribution prices and services. Unless otherwise determined, you will continue to receive your bill from your Local Distribution Company (“LDC”, “Utility”) for all electricity supply and delivery charges. Your LDC will continue to provide all emergency repairs and services. NWE is not affiliated with and does not represent your LDC.
2. Definitions. “New Wave”, “NWE”, “Supplier”, “us”, “we”, “our” means New Wave Energy, LLC and refers to the retail electricity provider supplying energy services to you as provided in these Terms of Service. “Customer”, “you”, or “your” means the customer identified herein, in the Disclosure Statement, Voice Authorization, or Written Authorization and as addressed in the Customer Information section as identified within this Agreement. NWE and Customer can collectively be referred to as “Parties”. 
3. Agreement To Sell And Purchase Energy. 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 electricity as necessary to meet Customer’s requirements based upon consumption data obtained by NWE from the LDC.
4. Right Of Rescission. If the Customer named herein is receiving residential service, the Customer has the right to rescind this Agreement, without penalty, within three (3) business days after the effective, executed signature date with all of its Terms and Conditions, are executed and received. Non-residential customers have no right to rescind this Agreement without penalty.
5. Contract Duration. You will buy your electricity supply service for the contracted meters herein and/or as listed on Addendum A from NWE beginning on the date set by your LDC and shall continue for the Contract Duration as disclosed within your Contract Summary. 
6. Renewal Provision/Change In Terms. Upon completion of the Initial Term, New Wave will, in its sole discretion, either for Standard Fixed products, (i) obtain your affirmative consent to renew this Agreement under a new rate structure, terms, and conditions of service at the updated Rate Cap, or (ii) automatically renew your service under this Agreement to a monthly contract priced at a variable rate which guarantees you savings compared to the default utility rate (“Guaranteed Savings Renewal Rate”). The Guaranteed Savings Renewal Rate will not include Green Electricity but will provide guaranteed savings compared to what you would have paid under the Utility supply rate, reconciled on a twelve-month basis through the issuance of a credit or refund to you. New Wave reserves the right, in its sole discretion, to choose not to automatically renew this Agreement at the end of the Initial Term, in which case New Wave will return your account to full Utility service. Customer understands this section as the auto-renewal section of this agreement and hereby waives NY GBL 5-903 and all Customer’s equities and rights under NY GBL 5-903. Either party may cancel or terminate this Agreement by providing 30 days’ advance written notice of termination to the other party. Either a Residential or Non-Residential Customer may cancel this agreement at any time by contacting Supplier with thirty (30) days prior notice on the toll-free number listed above or in writing at the address listed above or via email at Support@nwaveenergy.com. 
7. Price. Unless otherwise agreed to in writing, the rate for services provided in this Agreement is set forth on the Customer Disclosure Statement. The Fixed Rate Standard Electric products will be priced at no more than 5% greater than the trailing twelve (12) month average of the Utility supply rate at the time you enter into this Agreement, but will not include Green Electricity. Unless otherwise noted, the electric rates do not include taxes, regulated charges from the Utility, including but not limited to Utility distribution charges, service or account fees, or Utility transition charges. Except as otherwise provided, all rates may be higher or lower than the monthly utility rate and are subject to change based on a change in law, rule, or regulation as described in Section 15, or based on a pass-through of state energy credits or subsidies as described in Section 16. Customer acknowledges that the rate for services offered by New Wave in this Agreement is based in part on Customer representations as stated within this Agreement. For Non-Residential customers only, New Wave reserves the right to pass through to Customer any costs incurred as a result of any variance in the estimated annual kWh set forth within this Agreement, including costs associated with New Wave’s over or under procurement of electricity necessary to supply Customer’s account(s).

Limited Time Offer: Introductory rates are available online at www.NewWaveEnergy.com, or as otherwise offered, for New Customers only. Valid only while offers are posted and advertised and are subject to change with or without notice. This offer is not valid for existing or repeat customers, or for successive terms. New Customers may purchase an introductory electricity and/or natural gas rate plus taxes & fees, and other extra costs. Promotional rate for the advertised term only. This discount has no cash value, is non-transferrable, and may not be applied to renewals or any other products, purchases, or term lengths. New Wave Energy reserves the right to reject, block, or discontinue the Customer’s enrollment, product availability, and service at any time. Additional restrictions may apply.

8. Assignment. Customer shall not assign its rights or obligations under this Agreement in whole or in part without the prior written consent of Supplier. NWE 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, 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 this agreement is assigned, sold, or is transferred to another party, this Agreement shall survive and shall transfer to the other party even in an asset sale.
9. Cancellation. Customer may cancel this Agreement by contacting NWE at 1-855-998-WAVE or by email at Support@nwaveenergy.com. Company Initiated Cancellation – NWE may cancel or alter this agreement at any time upon providing written notice to Customer via U.S. Mail. Common reasons for NWE to cancel this agreement would include Non-Payment – If your electricity is terminated by your LDC, then this agreement is cancelled on the date that your electric service is terminated.  You will owe us for amounts unpaid for our charges for electricity supply service up to the date of termination. Customer Move – If the customer moves from the address listed above, this agreement is cancelled. If we cancel this agreement for any reason other than for customer non-payment, we will follow applicable rules in providing notice to you. Upon cancellation, Customer is still responsible for paying any of NWE’s charges for electricity supply for service up to the date that the cancellation is processed by the LDC. Penalties, Fees And Exceptions. If the Customer is receiving residential service and cancels the agreement prior to the end of the Initial Term, an early termination fee (“ETF”) will be charged. The ETF is $99 for a contract with a remaining term of 12 months or less but more than one month, and $199 for a contract with a remaining term of more than 12 months. Non-residential customers are subject to an ETF equal to the projected remaining quantity of kWh 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 NWE 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 NWE as a result of Customer’s termination.
10. 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, 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.
11. Cost Savings Analyses. At NWE’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.
12. Information Release Authorization. Customer authorizes NWE 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; social security number, 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. This information may be used by NWE to determine whether it will commence and/or continue to provide energy supply service to Customer and NWE is prohibited from disclosing a customer’s social security number and/or account number(s) without the customer’s consent unless required by law, or for Supplier’s own collections and credit reporting, or assigning a customer contract to another supplier, or if NWE is transferred, sold, or pending sale. Customer’s execution of this Agreement shall constitute authorization for the release of this information to NWE. 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 NWE at the address listed on this Agreement. NWE reserves the right to cancel this Agreement in the event Customer rescinds the authorization.
13. Agency-Electric. Customer hereby designates NWE as agent to; (a) arrange and administer contracts and service agreements between Customer and NWE and those entities including the 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 Delivery Point and the Customer’s end-use premises. NWE 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. These services are provided on an arm’s length basis and market-based compensation may or may not be included in the rate noted above.    
14. Force Majeure. NWE will make commercially reasonable efforts to provide electricity hereunder but does not guarantee a continuous supply of electricity to Customer. Certain causes and events out of the control of NWE (“Force Majeure Events”) may result in interruptions in service. NWE will not be liable for any such interruptions caused by a Force Majeure Event, and NWE 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, pandemics and other health emergencies, operational flow orders, sudden failure of electric or gas supply, grid constraints, freezing of wells or pipelines, required maintenance work, inability to access the local distribution utility system, changes in economic or business conditions, non-performance by the utility (including, but not limited to, a facility outage on its electricity distribution lines), or any other cause beyond NWE’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 electric rate shall be subject to change at Supplier’s discretion. 
15. Dispute Procedures. In the event of a billing dispute or a disagreement involving NWE’s service hereunder, the parties will use their best efforts to resolve the dispute. Customer may contact NWE by telephone or in writing, as provided below. Customer Protection. This contract is governed by the Terms and conditions of this agreement and the New York State Public Service Commission rules and regulations (Orders) including the Uniform Business Practices (UBP) and other applicable requirements including the NYS Home Energy Fair Practices Act (HEFPA) for residential customers. Customer may obtain additional information by contacting the Department of Public Service (“DPS”) at 1-800-342-3377, or by writing to New York State Department of Public Service, Office of Consumer Services, Three Empire State Plaza, Albany, New York 12223.
16. Contact Information.

Supplier Information: 

NEW WAVE ENERGY, LLC

410 Main Street, Buffalo, NY 14202

1-855-998-WAVE 

Website: www.NewWaveEnergy.com

Support@nwaveenergy.com

17. Arbitration Of Disputes/Waiver Of Jury Trial/Class Action Waiver. Any dispute involving Supplier and Customer, whether arising or based in any contract, statute, regulation, or tort, shall be decided by binding arbitration under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) and pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., and shall have a venue exclusively in Buffalo, New York under this Agreement. Any claim, arbitration, action, or proceeding shall proceed only on an individual basis. Customer shall not be permitted to join or consolidate disputes involving others in any claim, arbitration, action, or proceeding, nor shall any claim, arbitration, action, or proceeding be brought or maintained as a class action or in any representative capacity. 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. Local Utility companies have the exclusive ability to disconnect Customer’s service. Supplier does not have this ability or authority.  Any Claim permissible herein must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiffs, or similar proceeding (“Class Action”). Each of the parties expressly waives any ability to maintain any Class Action in any forum. NWE AND CUSTOMER UNDERSTAND THAT THEY ARE KNOWINGLY, VOLUNTARILY, AND WILLINGLY WAIVING THE RIGHT TO A TRIAL BY JURY AND CUSTOMER IS WAIVING THE RIGHT TO PARTICIPATE IN OR BE REPRESENTED IN ANY CLASS ACTION SUIT AGAINST SUPPLIER. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. 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.
18. Limitations Of Liability. The remedy in any claim or suit by Customer against NWE 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.
19. 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 NWE has sole discretion to disclose and to publicize the identity of a non-residential customer as a client of NWE and shall be entitled to display the Customer’s logo on Supplier’s Website and other advertisement literature.
20. Governing Law/Venue. 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 any otherwise applicable conflicts of law principles. Venue for any proceeding (including, but not limited to all meetings, arbitrations, dispute resolutions, depositions, motions and/or trials) shall be in Buffalo, NY and court proceedings shall be limited to a State of New York Court sitting in Buffalo, NY or a Federal Court sitting in Buffalo, NY.
21. Taxes. Except as otherwise provided in the Agreement or provided by law, all taxes of whatsoever kind, nature, and description due and payable with respect to service provided under this Agreement, other than taxes based on NWE’s net income, shall be paid by Customer, and Customer agrees to indemnify NWE and hold NWE harmless from and against any and all such taxes.
22. Incentives. If selected by customer: (1) Cinch Home Protection. When Customer begins receiving supply service from NWE, Customer is eligible to receive services from Cinch Home Services Inc. or its affiliates (“Cinch”). The terms and conditions of your Cinch services are separate from this Agreement, and Cinch may update or modify the terms and conditions of its services to you, which shall not affect the terms of this Agreement.  If Customer no longer receives services from NWE, then Customer will no longer receive services from Cinch. If Cinch terminates its services to Customer, NWE reserves the right to cancel this Agreement upon 30 days prior written notice. Cinch HVAC and Surge Protection: For HVAC and Surge Protection, Customer must be homeowner or have approval from homeowner to enroll and receive such services. A Customer without such approval may not enroll in the Cinch program. For a list of covered items, Customer shall refer to the Cinch Contract for the terms and conditions, which includes limitations and exclusions that may apply. Minimum service fees and yearly caps on services may apply to Cinch services; or (2) Renewable Energy: For Supplier’s renewable energy products, NWE will offset the Customer’s energy usage by purchasing Renewable Energy Credits (“RECs”) associated with the Customer’s electricity usage at a percentage solely determined by the Supplier. NWE will (directly or indirectly) retire, on Customer’s behalf, RECs resulting from electricity generated from renewable energy sources, which may include solar, wind, hydro, or any other renewable attribute in an amount sufficient to match Customer’s annual consumption from the LDC. Customer will not have electricity from a specific generation facility or renewable energy source delivered directly to Customer’s meter. NWE will not be liable to Customer or other parties for advertising assertions associated with NWE’s renewable offers. 
23. Regulatory/Market Changes And Volatility/Adjustments. This Agreement is subject to present and future legislation, orders, rules, regulations, decisions, or actions of a duly constituted governmental authority, regulatory body, ISO, PJM, gas pipelines or interconnects, 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, market movement, or market force or Supplier’s prediction thereof, 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, 841, and/or 2222 costs, and collateral requirements or there is a change in business conditions, NWE shall have the right to modify this Agreement to reflect such regulatory change and to impose pass-through charges, line-items, or other related charges to Customer and Customer agrees to pay such charges. Customer will be notified of these changes in service terms. Energy Credits And Subsidies: To the extent New Wave is required to purchase Renewable Energy Credits, Zero Emissions Credits, or other federal, state, or locally mandated credits, taxes, or subsidies to support the development and/or maintenance of renewable or zero carbon resources, such costs will be automatically passed through to the Customer and adjusted into the Agreement price. Customer understands and acknowledges that such costs are subject to change at any time and are outside of New Wave’s control.
24. Material Changes In Customer Operations/Onsite Generation. Customer must immediately inform Supplier if there is a change in Customer’s operations that will materially impact its electricity demand and/or usage, including but not limited to changes in hours of operation, installation or operation of onsite generation units (including, but not limited to onsite generation using diesel, natural gas, or solar generation facilities) or other changes that may impact the cost to provide energy supply to Customer (“Material Change”). In the event of a Material Change, Supplier is entitled in its sole discretion to either 1) terminate the Agreement or 2) to revise and restate Customer’s price in its sole discretion to reflect any increases to the cost to serve Customer based on Customers changed operations. These modifications constitute a change in the terms of service and the customer will be notified of these changes before they occur.
25. Emergency Service. The Utility will continue to operate and maintain the infrastructure, including but not limited to, electric transmission lines, wires, and apparatuses. In the event of a gas leak, electric power outage or other emergency, please use the following toll-free numbers to directly contact your utility: Central Hudson Gas & Electric (1-800-527-2714); ConEdison (1-800-752-6633); National Fuel (1-800-444-3130); National Grid (1-800-892-2345); NYSEG (1-800-572-1131); Orange & Rockland Electric (1-877-434-4100); Orange & Rockland Gas (1-800-533-5325); Rochester Gas & Electric (1-800-743-1701).
26. Parties Bound. This Agreement is binding upon the parties hereto and their respective successors and legal assigns. Customer and NWE have caused this Agreement to be executed by individuals authorized to bind each party, and Customer has reviewed all of the terms herein.   
27. Warranty. This Agreement, including any enrollment form and applicable attachments, as written makes up the entire Agreement between Customer and NWE. NWE makes no representations or warranties other than those expressly set forth in this Agreement, and NWE expressly disclaims all other warranties, express or implied, including merchantability and fitness for a particular use.
28. Entire Agreement. This signed Agreement (“Written Authorization”), or the online or voice recording authorizing Customer’s decision to take service from NWE (“Online Enrollment”, “Voice Authorization”, or “TPV”), coupled with these Terms of Service 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.

FIXED RATE PROGRAM (NATURAL GAS) – RESIDENTIAL CUSTOMERS

CUSTOMER DISCLOSURE STATEMENT & TERMS AND CONDITIONS

1. Background. This Natural Gas supply services agreement (“Agreement”, “Contract”) is entered into by and between New Wave Energy, LLC (“New Wave”, ”NWE”, “Supplier”), an independent Natural Gas supplier, and the customer (“Customer”), under which Customer shall obtain Natural Gas supply service and begin enrollment with NWE (the “Agreement”). NWE is licensed by the New York State Public Service Commission (“NYPSC”) to offer and supply Natural Gas supply services in New York. Your Natural Gas prices and charges will be set by NWE. The Federal Energy Regulatory Commission regulates Natural Gas transmission prices and services. The NYPSC regulates distribution prices and services. Unless otherwise determined, you will continue to receive your bill from your Local Distribution Company (“LDC”, “Utility”) for all Natural Gas supply and delivery charges. Your LDC will continue to provide all emergency repairs and services. NWE is not affiliated with and does not represent your LDC.
2. Definitions. “New Wave”, “NWE”, “Supplier”, “us”, “we”, “our” means New Wave Energy, LLC and refers to the retail natural gas provider supplying energy services to you as provided in these Terms of Service. “Customer”, “you”, or “your” means the customer identified herein, in the Disclosure Statement, Voice Authorization, or Written Authorization and as addressed in the Customer Information section as identified within this Agreement. NWE and customer can collectively be referred to as “Parties”. 
3. Agreement To Sell And Purchase Energy. 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 necessary to meet Customer’s requirements based upon consumption data obtained by NWE from the LDC.
4. Right Of Rescission. If the Customer named herein is receiving residential service, the Customer has the right to rescind this Agreement, without penalty, within three (3) business days after the effective, executed signature date with all of its Terms and Conditions, are executed and received. Non-residential customers have no right to rescind this Agreement without penalty. 
5. Contract Duration. You will buy your natural gas service for the contracted meters herein and/or as listed on Addendum A from NWE beginning on the date set by your LDC. This Agreement shall commence as of the date the change of Customer’s provider to NWE is deemed effective by the LDC and shall continue for the Contract Duration as disclosed within your Contract Summary. 
6. Renewal Provision/Change In Terms. Upon completion of the Initial Term, New Wave will, in its sole discretion, either for Standard Fixed products, (i) obtain your affirmative consent to renew this Agreement under a new rate structure, terms, and conditions of service at the updated Rate Cap, or (ii) automatically renew your service under this Agreement to a monthly contract priced at a variable rate which guarantees you savings compared to the default utility rate (“Guaranteed Savings Renewal Rate”). The Guaranteed Savings Renewal Rate will provide guaranteed savings compared to what you would have paid under the Utility supply rate, reconciled on a twelve-month basis through the issuance of a credit or refund to you. New Wave reserves the right, in its sole discretion, to choose not to automatically renew this Agreement at the end of the Initial Term, in which case New Wave will return your account to full Utility service. Customer understands this section as the auto-renewal section of this agreement and hereby waives NY GBL 5-903 and all Customer’s equities and rights under NY GBL 5-903. Either party may cancel or terminate this Agreement by providing 30 days’ advance written notice of termination to the other party. Either a Residential or Non-Residential Customer may cancel this agreement at any time by contacting Supplier with thirty (30) days prior notice on the toll-free number listed above or in writing at the address listed above or via email at Support@nwaveenergy.com.
7. Price. Unless otherwise agreed to in writing, the rate for services provided in this Agreement is set forth on the Customer Disclosure Statement. The Fixed Rate Standard Natural Gas product will be priced at no more than 5% greater than the trailing twelve (12) month average of the Utility supply rate at the time you enter into this Agreement. Guaranteed Savings products will be priced at a variable rate and to the extent Customer does not receive at least one percent (1%) savings compared to what Customer would have paid for applicable default utility service beginning after the verified switch-over/start date with New Wave, New Wave will issue a credit or refund to reconcile the customer’s account on an annual basis, or if the Customer terminates service prior to an annual period, no later than sixty (60) days following termination. Unless otherwise noted, the natural gas rates do not include taxes, regulated charges from the Utility, including but not limited to Utility distribution charges, service or account fees, or Utility transition charges. Except as otherwise provided, all rates may be higher or lower than the monthly utility rate and are subject to change based on a change in law, rule, or regulation as described in Section 15, or based on a pass-through of state energy credits or subsidies as described in Section 16. Customer acknowledges that the rate for services offered by New Wave in this Agreement is based in part on Customer representations as stated within this Agreement. For Non-Residential customers only, New Wave reserves the right to pass through to Customer any costs incurred as a result of any variance in the estimated annual CCF/Therm set forth within this Agreement, including costs associated with New Wave’s over or under procurement of natural gas necessary to supply Customer’s account(s).

Limited Time Offer: Introductory rates are available online at www.NewWaveEnergy.com, or as otherwise offered, for New Customers only. Valid only while offers are posted and advertised and are subject to change with or without notice. This offer is not valid for existing or repeat customers, or for successive terms. New Customers may purchase an introductory electricity and/or natural gas rate plus taxes & fees, and other extra costs. Promotional rate for the advertised term only. This discount has no cash value, is non-transferrable, and may not be applied to renewals or any other products, purchases, or term lengths. New Wave Energy reserves the right to reject, block, or discontinue the Customer’s enrollment, product availability, and service at any time. Additional restrictions may apply.

8. Assignment. Customer shall not assign its rights or obligations under this Agreement in whole or in part without the prior written consent of Supplier. NWE 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, 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 this agreement is assigned, sold, or is transferred to another party, this Agreement shall survive and shall transfer to the other party even in an asset sale.
9. Cancellation. Customer may cancel this Agreement by contacting NWE at 1-855-998-WAVE or by email at Support@nwaveenergy.com. Company Initiated Cancellation – NWE may cancel or alter this agreement at any time upon providing written notice to Customer via U.S. Mail. Common reasons for NWE to cancel this agreement would include Non-Payment – If your natural gas is terminated by your LDC, then this agreement is cancelled on the date that your natural gas service is terminated.  You will owe us for amounts unpaid for our charges for natural gas service up to the date of termination. Customer Move – If the customer moves from the address listed above, this agreement is cancelled. If we cancel this agreement for any reason other than for customer non-payment, we will follow applicable rules in providing notice to you. Upon cancellation, Customer is still responsible for paying any of NWE’s charges for natural gas supply for service up to the date that the cancellation is processed by the LDC. Penalties, Fees And Exceptions. If the Customer is receiving residential service and cancels the agreement prior to the end of the Initial Term, an early termination fee (“ETF”) will be charged. The ETF is $99 for a contract with a remaining term of 12 months or less but more than one month, and $199 for a contract with a remaining term of more than 12 months. Non-residential customers are subject to an ETF equal to the projected remaining quantity of CCF or Therm 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 NWE 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 NWE as a result of Customer’s termination.
10. 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, 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.
11. Cost Savings Analyses. At NWE’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.
12. Information Release Authorization. Customer authorizes NWE 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; social security number, 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. This information may be used by NWE to determine whether it will commence and/or continue to provide energy supply service to Customer and NWE is prohibited from disclosing a customer’s social security number and/or account number(s) without the customer’s consent unless required by law, or for Supplier’s own collections and credit reporting, or assigning a customer contract to another supplier, or if NWE is transferred, sold, or pending sale. Customer’s execution of this Agreement shall constitute authorization for the release of this information to NWE. 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 NWE at the address listed on this Agreement. NWE reserves the right to cancel this Agreement in the event Customer rescinds the authorization.
13. Agency-Natural Gas. Customer hereby designates NWE as agent to; (a) arrange and administer contracts and service agreements between Customer and NWE and those entities including the wholesale natural gas provider or driller or producer or pipeline operator and any other entity involved in consummating the natural gas transaction, transmission and delivery of Customer natural gas supplies; and (b) nominate and schedule with the appropriate entities including the LDC for the delivery of natural gas to the Delivery Point and the Customer’s end-use premises. NWE as agent for the Customer will schedule the delivery of adequate supplies of natural gas that meet the Customer’s requirements as established by the LDC and in response to information provided by the LDC. These services are provided on an arm’s length basis and market-based compensation and may or may not be included in the rate noted above. 
14. Force Majeure. NWE 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 NWE (“Force Majeure Events”) may result in interruptions in service. NWE will not be liable for any such interruptions caused by a Force Majeure Event, and NWE 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, pandemics and other health emergencies, operational flow orders, sudden failure of natural gas or gas supply, grid constraints, freezing of wells or pipelines, required maintenance work, inability to access the local distribution utility system, change in business conditions, non-performance by the utility (including, but not limited to, a facility outage on its distribution lines or pipelines), or any other cause beyond NWE’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. 
15. Dispute Procedures. In the event of a billing dispute or a disagreement involving NWE’s service hereunder, the parties will use their best efforts to resolve the dispute. Customer may contact NWE by telephone or in writing, as provided below. Customer Protection. This contract is governed by the Terms and conditions of this agreement and the New York State Public Service Commission rules and regulations (Orders) including the Uniform Business Practices (UBP) and other applicable requirements including the NYS Home Energy Fair Practices Act (HEFPA) for residential customers. Customer may obtain additional information by contacting the Department of Public Service (“DPS”) at 1-800-342-3377, or by writing to New York State Department of Public Service, Office of Consumer Services, Three Empire State Plaza, Albany, New York 12223.
16. Contact Information.

Supplier Information: 

NEW WAVE ENERGY, LLC

410 Main Street, Buffalo, NY 14202

1-855-998-WAVE 

Website: www.NewWaveEnergy.com

Support@nwaveenergy.com

17. Arbitration Of Disputes/Waiver Of Jury Trial/Class Action Waiver. Any dispute involving Supplier and Customer, whether arising or based in any contract, statute, regulation, or tort, shall be decided by binding arbitration under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) and pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., and shall have a venue exclusively in Buffalo, New York under this Agreement. Any claim, arbitration, action, or proceeding shall proceed only on an individual basis. Customer shall not be permitted to join or consolidate disputes involving others in any claim, arbitration, action, or proceeding, nor shall any claim, arbitration, action, or proceeding be brought or maintained as a class action or in any representative capacity. 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. Local Utility companies have the exclusive ability to disconnect Customer’s service. Supplier does not have this ability or authority. Any Claim permissible herein must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiffs, or similar proceeding (“Class Action”). Each of the parties expressly waives any ability to maintain any Class Action in any forum. NWE AND CUSTOMER UNDERSTAND THAT THEY ARE KNOWINGLY, VOLUNTARILY, AND WILLINGLY WAIVING THE RIGHT TO A TRIAL BY JURY AND CUSTOMER IS WAIVING THE RIGHT TO PARTICIPATE IN OR BE REPRESENTED IN ANY CLASS ACTION SUIT AGAINST SUPPLIER. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.  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.
18. Limitations Of Liability. The remedy in any claim or suit by Customer against NWE 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.
19. 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 NWE has sole discretion to disclose and to publicize the identity of a non-residential customer as a client of NWE and shall be entitled to display the Customer’s logo on Supplier’s Website and other advertisement literature.
20. Governing Law/Venue. 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 any otherwise applicable conflicts of law principles. Venue for any proceeding (including, but not limited to all meetings, arbitrations, dispute resolutions, depositions, motions and/or trials) shall be in Buffalo, NY and court proceedings shall be limited to a State or Federal Court located in Buffalo, NY.
21. Taxes. Except as otherwise provided in the Agreement or provided by law, all taxes of whatsoever kind, nature, and description due and payable with respect to service provided under this Agreement, other than taxes based on NWE’s net income, shall be paid by Customer, and Customer agrees to indemnify NWE and hold NWE harmless from and against any and all such taxes.
22. Incentives. If selected by customer: (1) Cinch Home Protection. When Customer begins receiving supply service from NWE, Customer is eligible to receive services from Cinch Home Services Inc. or its affiliates (“Cinch”). The terms and conditions of your Cinch services are separate from this Agreement, and Cinch may update or modify the terms and conditions of its services to you, which shall not affect the terms of this Agreement. If Customer no longer receives services from NWE, then Customer will no longer receive services from Cinch.  If Cinch terminates its services to Customer, NWE reserves the right to cancel this Agreement upon 30 days prior written notice. Cinch Plumbing Protection: For Plumbing Protection, Customer must be homeowner or have approval from homeowner to enroll and receive such services. A Customer without such approval may not enroll in the Cinch program. For a list of covered items, the Customer shall refer to the Cinch Contract for the terms and conditions, which includes limitations and exclusions that may apply.  Minimum service fees and yearly caps on services may apply to Cinch services; or (2) Carbon Offsets: For Supplier’s carbon off-set natural gas products, NWE will offset the carbon emissions associated with the Customer’s natural gas usage at a percentage solely determined by the Supplier through the use of any approved carbon offset technology or mitigant including one or more of the following: 1. Purchase and retirement of RECs from any carbon-neutral energy source. 2. Purchase and retirement of carbon credits through reputable standards such as The Verified Carbon Standard (VCS), The Gold Standard, The Climate Action Reserve, and/or American Carbon Registry and/or (3) other economically available products, such as reforestation. The carbon emissions estimations are based on current data & assumptions from the U.S. Environmental Protection Agency (https://www.epa.gov/ghgemissions/global-greenhouse-gas-emissions-data Updated 5/30/2020). Purchase of carbon offset products does not actually reduce the CO2 emissions associated with customer’s energy consumption but helps offset the release of the applicable number of metric tons of CO2 emissions elsewhere.
23. Regulatory/Market Changes And Volatility/Adjustments. This Agreement is subject to present and future legislation, orders, rules, regulations, decisions, or actions of a duly constituted governmental authority, regulatory body, ISO, PJM, gas pipelines or interconnects, 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, market movement, or market force or Supplier’s prediction thereof, 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, 841, and/or 2222 costs, and collateral requirements or there is a change in business conditions, NWE shall have the right to modify this Agreement to reflect such regulatory change and to impose pass-through charges, line-items, or other related charges to Customer and Customer agrees to pay such charges. Customer will be notified of these changes in service terms. Energy Credits And Subsidies: To the extent New Wave is required to purchase Renewable Energy Credits, Zero Emissions Credits, or other federal, state, or locally mandated credits, taxes, or subsidies to support the development and/or maintenance of renewable or zero carbon resources, such costs will be automatically passed through to the Customer and incorporated into the Agreement price. Customer understands and acknowledges that such costs are subject to change at any time and are outside of New Wave’s control.
24. Material Changes In Customer Operations/Onsite Generation. Customer must immediately inform Supplier if there is a change in Customer’s operations that will materially impact its natural gas  demand and/or usage, including but not limited to changes in hours of operation, installation or operation of onsite generation units (including, but not limited to onsite generation using diesel, natural gas, or solar generation facilities) or other changes that may impact the cost to provide energy supply to Customer (“Material Change”). In the event of a Material Change, Supplier is entitled in its sole discretion to either 1) terminate the Agreement or 2) offer to revise and restate Customer’s price with Customer’s authorization to reflect any increases to the cost to serve Customer based on Customers changed operations. These modifications constitute a change in the terms of service and the customer will be notified of these changes before they occur.
25. Emergency Service. Your LDC will continue to respond to power failures, leaks, and emergencies. In the event of a gas leak, or service interruption or other emergency, Customer should immediately call the LDC. Supplier is not liable for any emergencies, damaged property, or interruption of services and shall be held harmless of any such claims.
26. Parties Bound. This Agreement is binding upon the parties hereto and their respective successors and legal assigns. Customer and NWE have caused this Agreement to be executed by individuals authorized to bind each party, and Customer has reviewed all of the terms herein.   
27. Warranty. This Agreement, including any enrollment form and applicable attachments, as written makes up the entire Agreement between Customer and NWE. NWE makes no representations or warranties other than those expressly set forth in this Agreement, and NWE expressly disclaims all other warranties, express or implied, including merchantability and fitness for a particular use.
28. Entire Agreement. This signed Agreement (“Written Authorization”), or the online or voice recording authorizing Customer’s decision to take service from NWE (“Online Enrollment”, “Voice Authorization” or “TPV”), coupled with these Terms of Service 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.

RENEW ENERGY PROGRAM (ELECTRICITY) – COMMERCIAL & RESIDENTIAL CUSTOMERS

CUSTOMER DISCLOSURE STATEMENT & TERMS AND CONDITIONS

1. Background. This electricity supply services agreement (“Agreement”, “Contract”) is entered into by and between New Wave Energy, LLC (“New Wave”, ”NWE”, “Supplier”), an independent electricity generation supplier, and the customer (“Customer”), under which Customer shall obtain electricity generation supply service and begin enrollment with NWE (the “Agreement”). NWE is licensed by the New York State Public Service Commission (“NYPSC”) to offer and supply electricity generation supply services in New York. Your electricity generation prices and charges will be set by NWE. The Federal Energy Regulatory Commission regulates electricity transmission prices and services. The NYPSC regulates distribution prices and services. Unless otherwise determined, you will continue to receive your bill from your LDC for all electricity supply and delivery charges. Your LDC will continue to provide all emergency repairs and services. NWE is not affiliated with and does not represent your LDC.
2. Definitions. “New Wave”, “NWE”, “Supplier”, “us”, “we”, “our” means New Wave Energy, LLC and refers to the retail electricity provider supplying energy services to you as provided in these Terms of Service. “Customer”, “you”, or “your” means the customer identified herein, in the Disclosure Statement, Voice Authorization, or Written Authorization and as addressed in the Customer Information section as identified within this Agreement. NWE and Customer can collectively be referred to as “Parties”. Green Electricity: For purposes of this Agreement, Green Electricity means either procurement of eligible clean energy as defined in the Climate Leadership and Community Protection Act, and/or the procurement of clean energy attributes including, but not limited to, Renewable Energy Credits or Alternative Compliance Payments from eligible sources that comply with the appropriate locational and delivery requirements established by the Public Service Commission. If you are a customer receiving Green Electricity, New Wave will purchase and retire, on the customer’s behalf, the requisite amount of Green Electricity that is at least 50% greater than the applicable Tier 1 Load Serving Entity obligation under the Renewable Energy Standard (“RES”). For example, the percentage of Green Electricity for 2021 will be at least 52.04% and for 2022 it will be 55.61%. Information on RES can be found at www. nyserda.ny.gov. The Parties agree that changes to the required amounts of Renewable Energy Credits or Alternative Compliance Payments (or costs of such attributes) under the RES constitutes a regulatory change for which New Wave reserves the right to raise or lower the price to reflect such change, to raise or lower the percentage of Green Electricity, or to procure such Green Electricity from other eligible sources in response to a regulatory change.  
3. Agreement To Sell And Purchase Energy. 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 electricity as necessary to meet Customer’s requirements based upon consumption data obtained by NWE from the LDC.
4. Right Of Rescission. If the Customer named herein is receiving residential service, the Customer has the right to rescind this Agreement, without penalty, within three (3) business days after the effective, executed signature date with all of its Terms and Conditions, are executed and received. Non-residential customers have no right to rescind this Agreement without penalty.
5. Contract Duration. You will buy your electricity supply service for the contracted meters herein and/or as listed on Addendum A from NWE beginning on the date set by your LDC. This Agreement will continue monthly until cancelled by either party.
6. Renewal Provision/Change In Terms. This Agreement will automatically renew on a monthly basis, or as otherwise specified by the Terms of Service of this Agreement. Customer understands this section as the auto-renewal section of this agreement and hereby waives NY GBL 5-903 and all Customer’s equities and rights under NY GBL 5-903. Either party may cancel or terminate this Agreement by providing 30 days’ advance written notice of termination to the other party. Either a Residential or Non-Residential Customer may cancel this agreement at any time by contacting Supplier with thirty (30) days prior notice on the toll-free number listed above or in writing at the address listed above or via email at Support@nwaveenergy.com.
7. Price. Your price per kWh for your first billing for electric supply services is stated on the Contract Summary. Thereafter, the price that you will pay per kWh for electricity supply may vary monthly based on the following factors: NWE’s actual and estimated costs of obtaining wholesale electricity supply including but not limited to prior period adjustments, capacity, inventory and balancing costs, transportation and transmission costs incurred by NWE, line losses, the costs of acquiring renewable energy and zero emissions credits, utility fees, and other market and business related factors such as administrative costs, expenses, and margins. There is no limit on the amount that your price can decrease or increase monthly. Your NWE price may be higher or lower than the LDC’s price in any particular month, and there is no maximum price. Your price includes estimated total state taxes, but excludes New York sales tax, if applicable. Customers will know the price per unit for electricity at the time of billing. Customers can call NWE at 1-855-998-WAVE or visit our website at www.NewWaveEnergy.com for current variable pricing. Please note that historical prices are not indicative of present or future pricing. 

Limited Time Offer: Introductory rates are available online at www.NewWaveEnergy.com, or as otherwise offered, for New Customers only. Valid only while offers are posted and advertised and are subject to change with or without notice. This offer is not valid for existing or repeat customers, or for successive terms. New Customers may purchase an introductory electricity and/or natural gas rate plus taxes & fees, and other extra costs. Promotional rate for the advertised term only. This discount has no cash value, is non-transferrable, and may not be applied to renewals or any other products, purchases, or term lengths. New Wave Energy reserves the right to reject, block, or discontinue the Customer’s enrollment, product availability, and service at any time. Additional restrictions may apply.

8. Assignment.  Customer shall not assign its rights or obligations under this Agreement in whole or in part without the prior written consent of Supplier. NWE 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, 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 this agreement is assigned, sold, or is transferred to another party, this Agreement shall survive and shall transfer to the other party even in an asset sale.
9. Cancellation. Customer may cancel this Agreement by contacting NWE at 1-855-998-WAVE or by email at Support@nwaveenergy.com. Company Initiated Cancellation – NWE may cancel or alter this agreement at any time upon providing written notice to Customer via U.S. Mail. Common reasons for NWE to cancel this agreement would include Non-Payment – If your electricity is terminated by your LDC, then this agreement is cancelled on the date that your electric service is terminated.  You will owe us for amounts unpaid for our charges for electricity supply service up to the date of termination. Customer Move – If the customer moves from the address listed above, this agreement is cancelled. If we cancel this agreement for any reason other than for customer non-payment, we will follow applicable rules in providing notice to you. Upon cancellation, Customer is still responsible for paying any of NWE’s charges for electricity supply for service up to the date that the cancellation is processed by the LDC. There are no cancellation fees or early termination fees for cancellation.
10. 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, 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.
11. Cost Savings Analyses. At NWE’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.
12. Information Release Authorization. Customer authorizes NWE 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; social security number, 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. This information may be used by NWE to determine whether it will commence and/or continue to provide energy supply service to Customer and NWE is prohibited from disclosing a customer’s social security number and/or account number(s) without the customer’s consent unless required by law, or for Supplier’s own collections and credit reporting, or assigning a customer contract to another supplier, or if NWE is transferred, sold, or pending sale. Customer’s execution of this Agreement shall constitute authorization for the release of this information to NWE. 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 NWE at the address listed on this Agreement. NWE reserves the right to cancel this Agreement in the event Customer rescinds the authorization.
13. Agency-Electric. Customer hereby designates NWE as agent to; (a) arrange and administer contracts and service agreements between Customer and NWE and those entities including the 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 Delivery Point and the Customer’s end-use premises. NWE 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. These services are provided on an arm’s length basis and market-based compensation may or may not be included in the rate noted above.  
14. Force Majeure. NWE will make commercially reasonable efforts to provide electricity hereunder but does not guarantee a continuous supply of electricity to Customer. Certain causes and events out of the control of NWE (“Force Majeure Events”) may result in interruptions in service. NWE will not be liable for any such interruptions caused by a Force Majeure Event, and NWE 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, pandemics and other health emergencies, operational flow orders, sudden failure of electric 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 electricity distribution lines), or any other cause beyond NWE’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 electric rate shall be subject to change at Supplier’s discretion. 
15. Dispute Procedures. In the event of a billing dispute or a disagreement involving NWE’s service hereunder, the parties will use their best efforts to resolve the dispute. Customer may contact NWE by telephone or in writing, as provided below. Customer Protection. This contract is governed by the Terms and conditions of this agreement and the New York State Public Service Commission rules and regulations (Orders) including the Uniform Business Practices (UBP) and other applicable requirements including the NYS Home Energy Fair Practices Act (HEFPA) for residential customers. Customer may obtain additional information by contacting the Department of Public Service (“DPS”) at 1-800-342-3377, or by writing to New York State Department of Public Service, Office of Consumer Services, Three Empire State Plaza, Albany, New York 12223.
16. Contact Information.

Supplier Information: 

NEW WAVE ENERGY, LLC

410 Main Street, Buffalo, NY 14202

1-855-998-WAVE 

Website: www.NewWaveEnergy.com

Support@nwaveenergy.com

17. Arbitration Of Disputes/Waiver Of Jury Trial/Class Action Waiver. Any dispute involving Supplier and Customer, whether arising or based in any contract, statute, regulation, or tort, shall be decided by binding arbitration under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) and pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., and shall have a venue exclusively in Buffalo, New York under this Agreement. Any claim, arbitration, action, or proceeding shall proceed only on an individual basis. Customer shall not be permitted to join or consolidate disputes involving others in any claim, arbitration, action, or proceeding, nor shall any claim, arbitration, action, or proceeding be brought or maintained as a class action or in any representative capacity. 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. Local Utility companies have the exclusive ability to disconnect Customer’s service. Supplier does not have this ability or authority.  Any Claim permissible herein must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiffs, or similar proceeding (“Class Action”). Each of the parties expressly waives any ability to maintain any Class Action in any forum. NWE AND CUSTOMER UNDERSTAND THAT THEY ARE KNOWINGLY, VOLUNTARILY, AND WILLINGLY WAIVING THE RIGHT TO A TRIAL BY JURY AND CUSTOMER IS WAIVING THE RIGHT TO PARTICIPATE IN OR BE REPRESENTED IN ANY CLASS ACTION SUIT AGAINST SUPPLIER. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.  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.
18. Limitations Of Liability. The remedy in any claim or suit by Customer against NWE 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.
19. 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 NWE has sole discretion to disclose and to publicize the identity of a non-residential customer as a client of NWE and shall be entitled to display the Customer’s logo on Supplier’s Website and other advertisement literature.
20. Governing Law/Venue. 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 any otherwise applicable conflicts of law principles. Venue for any proceeding (including, but not limited to all meetings, arbitrations, dispute resolutions, depositions, motions and/or trials) shall be in Buffalo, NY and court proceedings shall be limited to a State of New York Court sitting in Buffalo, NY or a Federal Court sitting in Buffalo, NY.
21. Taxes. Except as otherwise provided in the Agreement or provided by law, all taxes of whatsoever kind, nature, and description due and payable with respect to service provided under this Agreement, other than taxes based on NWE’s net income, shall be paid by Customer, and Customer agrees to indemnify NWE and hold NWE harmless from and against any and all such taxes.
22. Incentives. If selected by customer: (1) Cinch Home Protection. When Customer begins receiving supply service from NWE, Customer is eligible to receive services from Cinch Home Services Inc. or its affiliates (“Cinch”). The terms and conditions of your Cinch services are separate from this Agreement, and Cinch may update or modify the terms and conditions of its services to you, which shall not affect the terms of this Agreement. If Customer no longer receives services from NWE, then Customer will no longer receive services from Cinch. If Cinch terminates its services to Customer, NWE reserves the right to cancel this Agreement upon 30 days prior written notice. Cinch HVAC and Surge Protection: For HVAC and Surge Protection, Customer must be homeowner or have approval from homeowner to enroll and receive such services. A Customer without such approval may not enroll in the Cinch program. For a list of covered items, Customer shall refer to the Cinch Contract for the terms and conditions, which includes limitations and exclusions that may apply. Minimum service fees and yearly caps on services may apply to Cinch services; or (2) Renewable Energy: For Supplier’s renewable energy products, NWE will offset the Customer’s energy usage by purchasing Renewable Energy Credits (“RECs”) associated with the Customer’s electricity usage at a percentage solely determined by the Supplier. NWE will (directly or indirectly) retire, on Customer’s behalf, RECs resulting from electricity generated from renewable energy sources, which may include solar, wind, hydro, or any other renewable attribute in an amount sufficient to match Customer’s annual consumption from the LDC. Customer will not have electricity from a specific generation facility or renewable energy source delivered directly to Customer’s meter. NWE will not be liable to Customer or other parties for advertising assertions associated with NWE’s renewable offers. 
23. Regulatory/Market Changes And Volatility/Adjustments. This Agreement is subject to present and future legislation, orders, rules, regulations, decisions, or actions of a duly constituted governmental authority, regulatory body, ISO, PJM, gas pipelines or interconnects, 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, market movement, or market force or Supplier’s prediction thereof, 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, 841, and/or 2222 costs, and collateral requirements or there is a change in business conditions, NWE shall have the right to modify this Agreement to reflect such regulatory change and to impose pass-through charges, line-items, or other related charges to Customer and Customer agrees to pay such charges. Customer will be notified of these changes in service terms.
24. Material Changes In Customer Operations/Onsite Generation. Customer must immediately inform Supplier if there is a change in Customer’s operations that will materially impact its electricity demand and/or usage, including but not limited to changes in hours of operation, installation or operation of onsite generation units (including, but not limited to onsite generation using diesel, natural gas, or solar generation facilities) or other changes that may impact the cost to provide energy supply to Customer (“Material Change”). In the event of a Material Change, Supplier is entitled in its sole discretion to either 1) terminate the Agreement or 2) to revise and restate Customer’s price in its sole discretion to reflect any increases to the cost to serve Customer based on Customers changed operations. These modifications constitute a change in the terms of service and the customer will be notified of these changes before they occur.
25. Emergency Service. The Utility will continue to operate and maintain the infrastructure, including but not limited to, electric transmission lines, wires, and apparatuses. In the event of a gas leak, electric power outage or other emergency, please use the following toll-free numbers to directly contact your utility: Central Hudson Gas & Electric (1-800-527-2714); ConEdison (1-800-752-6633); National Fuel (1-800-444-3130); National Grid (1-800-892-2345); NYSEG (1-800-572-1131); Orange & Rockland Electric (1-877-434-4100); Orange & Rockland Gas (1-800-533-5325); Rochester Gas & Electric (1-800-743-1701).
26. Parties Bound. This Agreement is binding upon the parties hereto and their respective successors and legal assigns. Customer and NWE have caused this Agreement to be executed by individuals authorized to bind each party, and Customer has reviewed all of the terms herein.   
27. Warranty. This Agreement, including any enrollment form and applicable attachments, as written makes up the entire Agreement between Customer and NWE. NWE makes no representations or warranties other than those expressly set forth in this Agreement, and NWE expressly disclaims all other warranties, express or implied, including merchantability and fitness for a particular use.
28. Entire Agreement. This signed Agreement (“Written Authorization”), or the online or voice recording authorizing Customer’s decision to take service from NWE (“Online Enrollment”, “Voice Authorization”, or “TPV”), coupled with these Terms of Service 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.

RENEW ENERGY PROGRAM (NATURAL GAS) – COMMERCIAL & RESIDENTIAL CUSTOMERS

CUSTOMER DISCLOSURE STATEMENT & TERMS AND CONDITIONS

1. Background. This Natural Gas supply services agreement (“Agreement”, “Contract”) is entered into by and between New Wave Energy, LLC (“New Wave”, ”NWE”, “Supplier”), an independent Natural Gas supplier, and the customer (“Customer”), under which Customer shall obtain Natural Gas supply service and begin enrollment with NWE (the “Agreement”). NWE is licensed by the New York State Public Service Commission (“NYPSC”) to offer and supply Natural Gas supply services in New York. Your Natural Gas prices and charges will be set by NWE. The Federal Energy Regulatory Commission regulates Natural Gas transmission prices and services. The NYPSC regulates distribution prices and services. Unless otherwise determined, you will continue to receive your bill from your Local Distribution Company (“LDC”, “Utility”) for all Natural Gas supply and delivery charges. Your LDC will continue to provide all emergency repairs and services. NWE is not affiliated with and does not represent your LDC.
2. Definitions. “New Wave”, “NWE”, “Supplier”, “us”, “we”, “our” means New Wave Energy, LLC and refers to the retail natural gas provider supplying energy services to you as provided in these Terms of Service. “Customer”, “you”, or “your” means the customer identified herein, in the Disclosure Statement, Voice Authorization, or Written Authorization and as addressed in the Customer Information section as identified within this Agreement. NWE and customer can collectively be referred to as “Parties”. 
3. Agreement To Sell And Purchase Energy. 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 necessary to meet Customer’s requirements based upon consumption data obtained by NWE from the LDC.
4. Right Of Rescission. If the Customer named herein is receiving residential service, the Customer has the right to rescind this Agreement, without penalty, within three (3) business days after the effective, executed signature date with all of its Terms and Conditions, are executed and received. Non-residential customers have no right to rescind this Agreement without penalty.
5. Contract Duration. You will buy your natural gas service for the contracted meters herein and/or as listed on Addendum A from NWE beginning on the date set by your LDC. This Agreement shall commence as of the date the change of Customer’s provider to NWE is deemed effective by the LDC. This Agreement will continue on a variable rate methodology until terminated by either party.
6. Renewal Provision/Change In Terms. This Agreement will automatically renew on a monthly basis, or as otherwise specified by the Terms of Service of this Agreement. Customer understands this section as the auto-renewal section of this agreement and hereby waives NY GBL 5-903 and all Customer’s equities and rights under NY GBL 5-903. Either party may cancel or terminate this Agreement by providing 30 days’ advance written notice of termination to the other party. Either a Residential or Non-Residential Customer may cancel this agreement at any time by contacting Supplier with thirty (30) days prior notice on the toll-free number listed above or in writing at the address listed above or via email at Support@nwaveenergy.com.
7. Price. Your price for your first billing for natural gas supply services is stated on the Contract Summary. Thereafter, the price that you will pay per CCF or Therm for natural gas may vary monthly and shall reflect each month the wholesale cost of natural gas (including commodity, capacity, storage, and balancing), transportation to the Delivery Point, and other market-related factors, plus applicable taxes, fees, charges or other assessments and NWE costs, expenses and margins. The rate will be available each month at the time of billing as listed on the bill. There is no limit on the amount that your price can decrease or increase monthly. Your NWE price may be higher or lower than the LDC’s price in any particular month, and there is no maximum price. Customers will know the price per unit for natural gas at the time of billing. Customers can call NWE at 1-855-998-WAVE or visit our website at www.NewWaveEnergy.com for current variable pricing. Please note that historical prices are not indicative of present or future pricing. Conditions of variability are tied to the wholesale cost for natural gas, capacity, business and economic conditions, and pipeline conditions and fees. There is not a limit on how much the price may change from one billing cycle to the next. The price can change on each invoice. 

Limited Time Offer: Introductory rates are available online at www.NewWaveEnergy.com, or as otherwise offered, for New Customers only. Valid only while offers are posted and advertised and are subject to change with or without notice. This offer is not valid for existing or repeat customers, or for successive terms. New Customers may purchase an introductory electricity and/or natural gas rate plus taxes & fees, and other extra costs. Promotional rate for the advertised term only. This discount has no cash value, is non-transferrable, and may not be applied to renewals or any other products, purchases, or term lengths. New Wave Energy reserves the right to reject, block, or discontinue the Customer’s enrollment, product availability, and service at any time. Additional restrictions may apply.

8. Assignment. Customer shall not assign its rights or obligations under this Agreement in whole or in part without the prior written consent of Supplier. NWE 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, 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 this agreement is assigned, sold, or is transferred to another party, this Agreement shall survive and shall transfer to the other party even in an asset sale.
9. Cancellation. Customer may cancel this Agreement by contacting NWE at 1-855-998-WAVE or by email at Support@nwaveenergy.com. Company Initiated Cancellation – NWE may cancel or alter this agreement at any time upon providing written notice to Customer via U.S. Mail, courier, Electronic Mail, bill messaging system, invoice message, LDC bill messaging, or Facsimile. Common reasons for NWE to cancel this agreement would include Non-Payment – If your natural gas supply is terminated by your LDC, then this agreement is cancelled on the date that your natural gas service is terminated. You will owe us for amounts unpaid for our charges for natural gas supply service up to the date of termination. Customer Move – If the customer moves from the address listed above, this agreement is cancelled. If we cancel this agreement for any reason other than for customer non-payment, we will follow applicable rules in providing notice to you. Upon cancellation, Customer is still responsible for paying any of NWE’s charges for natural gas supply for service up to the date that the cancellation is processed by the LDC. There are no cancellation fees or early termination fees.
10. 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, 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.
11. Cost Savings Analyses. At NWE’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.
12. Information Release Authorization. Customer authorizes NWE 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; social security number, 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. This information may be used by NWE to determine whether it will commence and/or continue to provide energy supply service to Customer and NWE is prohibited from disclosing a customer’s social security number and/or account number(s) without the customer’s consent unless required by law, or for Supplier’s own collections and credit reporting, or assigning a customer contract to another supplier, or if NWE is transferred, sold, or pending sale. Customer’s execution of this Agreement shall constitute authorization for the release of this information to NWE. 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 NWE at the address listed on this Agreement. NWE reserves the right to cancel this Agreement in the event Customer rescinds the authorization. 
13. Agency-Natural Gas. Customer hereby designates NWE as agent to; (a) arrange and administer contracts and service agreements between Customer and NWE and those entities including the wholesale natural gas provider or driller or producer or pipeline operator and any other entity involved in consummating the natural gas transaction, transmission and delivery of Customer natural gas supplies; and (b) nominate and schedule with the appropriate entities including the LDC for the delivery of natural gas to the Delivery Point and the Customer’s end-use premises. NWE as agent for the Customer will schedule the delivery of adequate supplies of natural gas that meet the Customer’s requirements as established by the LDC and in response to information provided by the LDC. These services are provided on an arm’s length basis and market-based compensation and may or may not be included in the rate noted above.  
14. Force Majeure. NWE 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 NWE (“Force Majeure Events”) may result in interruptions in service. NWE will not be liable for any such interruptions caused by a Force Majeure Event, and NWE 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, pandemics and other health emergencies, operational flow orders, sudden failure of natural gas or gas supply, grid constraints, freezing of wells or pipelines, required maintenance work, inability to access the local distribution utility system, change in business conditions, non-performance by the utility (including, but not limited to, a facility outage on its distribution lines or pipelines), or any other cause beyond NWE’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. 
15. Dispute Procedures. In the event of a billing dispute or a disagreement involving NWE’s service hereunder, the parties will use their best efforts to resolve the dispute. Customer may contact NWE by telephone or in writing, as provided below. Customer Protection. This contract is governed by the Terms and conditions of this agreement and the New York State Public Service Commission rules and regulations (Orders) including the Uniform Business Practices (UBP) and other applicable requirements including the NYS Home Energy Fair Practices Act (HEFPA) for residential customers. Customer may obtain additional information by contacting the Department of Public Service (“DPS”) at 1-800-342-3377, or by writing to New York State Department of Public Service, Office of Consumer Services, Three Empire State Plaza, Albany, New York 12223.
16. Contact Information.

Supplier Information: 

NEW WAVE ENERGY, LLC

410 Main Street, Buffalo, NY 14202

1-855-998-WAVE 

Website: www.NewWaveEnergy.com

Support@nwaveenergy.com

17. Arbitration Of Disputes/Waiver Of Jury Trial/Class Action Waiver. Any dispute involving Supplier and Customer, whether arising or based in any contract, statute, regulation, or tort, shall be decided by binding arbitration under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) and pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq., and shall have a venue exclusively in Buffalo, New York under this Agreement. Any claim, arbitration, action, or proceeding shall proceed only on an individual basis. Customer shall not be permitted to join or consolidate disputes involving others in any claim, arbitration, action, or proceeding, nor shall any claim, arbitration, action, or proceeding be brought or maintained as a class action or in any representative capacity. 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. Local Utility companies have the exclusive ability to disconnect Customer’s service. Supplier does not have this ability or authority. Any Claim permissible herein must be brought in the party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiffs, or similar proceeding (“Class Action”). Each of the parties expressly waives any ability to maintain any Class Action in any forum. NWE AND CUSTOMER UNDERSTAND THAT THEY ARE KNOWINGLY, VOLUNTARILY, AND WILLINGLY WAIVING THE RIGHT TO A TRIAL BY JURY AND CUSTOMER IS WAIVING THE RIGHT TO PARTICIPATE IN OR BE REPRESENTED IN ANY CLASS ACTION SUIT AGAINST SUPPLIER. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator.  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.
18. Limitations Of Liability. The remedy in any claim or suit by Customer against NWE 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.
19. 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 NWE has sole discretion to disclose and to publicize the identity of a non-residential customer as a client of NWE and shall be entitled to display the Customer’s logo on Supplier’s Website and other advertisement literature.
20. Governing Law/Venue. 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 any otherwise applicable conflicts of law principles. Venue for any proceeding (including, but not limited to all meetings, arbitrations, dispute resolutions, depositions, motions and/or trials) shall be in Buffalo, NY and court proceedings shall be limited to a State or Federal Court located in Buffalo, NY.
21. Taxes. Except as otherwise provided in the Agreement or provided by law, all taxes of whatsoever kind, nature and description due and payable with respect to service provided under this Agreement, other than taxes based on NWE’s net income, shall be paid by Customer, and Customer agrees to indemnify NWE and hold NWE harmless from and against any and all such taxes.
22. Incentives. If selected by customer: (1) Cinch Home Protection. When Customer begins receiving supply service from NWE, Customer is eligible to receive services from Cinch Home Services Inc. or its affiliates (“Cinch”). The terms and conditions of your Cinch services are separate from this Agreement, and Cinch may update or modify the terms and conditions of its services to you, which shall not affect the terms of this Agreement. If Customer no longer receives services from NWE, then Customer will no longer receive services from Cinch.  If Cinch terminates its services to Customer, NWE reserves the right to cancel this Agreement upon 30 days prior written notice. Cinch Plumbing Protection: For Plumbing Protection, Customer must be homeowner or have approval from homeowner to enroll and receive such services. A Customer without such approval may not enroll in the Cinch program. For a list of covered items, the Customer shall refer to the Cinch Contract for the terms and conditions, which includes limitations and exclusions that may apply.  Minimum service fees and yearly caps on services may apply to Cinch services; or (2) Carbon Offsets: For Supplier’s carbon off-set natural gas products, NWE will offset the carbon emissions associated with the Customer’s natural gas usage at a percentage solely determined by the Supplier through the use of any approved carbon offset technology or mitigant including one or more of the following: 1. Purchase and retirement of RECs from any carbon-neutral energy source. 2. Purchase and retirement of carbon credits through reputable standards such as The Verified Carbon Standard (VCS), The Gold Standard, The Climate Action Reserve, and/or American Carbon Registry and/or (3) other economically available products, such as reforestation. The carbon emissions estimations are based on current data & assumptions from the U.S. Environmental Protection Agency (https://www.epa.gov/ghgemissions/global-greenhouse-gas-emissions-data Updated 5/30/2020). Purchase of carbon offset products does not actually reduce the CO2 emissions associated with customer’s energy consumption but helps offset the release of the applicable number of metric tons of CO2 emissions elsewhere.
23. Regulatory/Market Changes And Volatility/Adjustments. This Agreement is subject to present and future legislation, orders, rules, regulations, decisions, or actions of a duly constituted governmental authority, regulatory body, ISO, PJM, gas pipelines or interconnects, 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, market movement, or market force or Supplier’s prediction thereof, 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, 841, and/or 2222 costs, and collateral requirements or there is a change in business conditions, NWE shall have the right to modify this Agreement to reflect such regulatory change and to impose pass-through charges, line-items, or other related charges to Customer and Customer agrees to pay such charges. Customer will be notified of these changes in service terms.
24. Material Changes In Customer Operations/Onsite Generation. Customer must immediately inform Supplier if there is a change in Customer’s operations that will materially impact its natural gas  demand and/or usage, including but not limited to changes in hours of operation, installation or operation of onsite generation units (including, but not limited to onsite generation using diesel, natural gas, or solar generation facilities) or other changes that may impact the cost to provide energy supply to Customer (“Material Change”). In the event of a Material Change, Supplier is entitled in its sole discretion to either 1) terminate the Agreement or 2) offer to revise and restate Customer’s price with Customer’s authorization to reflect any increases to the cost to serve Customer based on Customers changed operations. These modifications constitute a change in the terms of service and the customer will be notified of these changes before they occur.
25. Emergency Service. Your LDC will continue to respond to power failures, leaks, and emergencies. In the event of a gas leak, or service interruption or other emergency, Customer should immediately call the LDC. Supplier is not liable for any emergencies, damaged property, or interruption of services and shall be held harmless of any such claims.
26. Parties Bound. This Agreement is binding upon the parties hereto and their respective successors and legal assigns. Customer and NWE have caused this Agreement to be executed by individuals authorized to bind each party, and Customer has reviewed all of the terms herein.   
27. Warranty. This Agreement, including any enrollment form and applicable attachments, as written makes up the entire Agreement between Customer and NWE. NWE makes no representations or warranties other than those expressly set forth in this Agreement, and NWE expressly disclaims all other warranties, express or implied, including merchantability and fitness for a particular use.

Entire Agreement. This signed Agreement (“Written Authorization”), or the online or voice recording authorizing Customer’s decision to take service from NWE (“Online Enrollment”, “Voice Authorization” or “TPV”), coupled with these Terms of Service 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.

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