PLEASE CAREFULLY READ THIS MASTER AGREEMENT FOR PROPANE SALES AND EQUIPMENT RENTAL (this “Agreement”), including the Current Charges List on page 4. The terms and conditions of this Master Agreement constitute a contract that will be accepted by you when one of the following first occurs: (1) you request or accept delivery of propane, service, or equipment from us; or (2) you permit equipment leased from us to remain on your property for more than thirty (30) days after your receipt of this Agreement; or (3) you do not contact Hill Country Hydro Gas, Inc. in writing within thirty (30) days after your receipt of this Agreement and terminate service. The terms of this Agreement also will apply to sales of refined fuel products.
For purposes of this Agreement, Hill Country Hydro Gas, Inc. will be “we” or “us.” “You” will be any person or entity who (a) requests delivery of Propane or equipment from us, (b) permits Propane or equipment to be delivered by us, or (c) permits Propane or equipment obtained from us to be retained on property which the person or entity owns, rents, or has a right to use (the “Property”). If you have, in the name of more than one person, requested delivery of Propane or equipment from us or applied for a product or service that requires credit approval, you will be jointly and severally responsible for complying with this Agreement. Any customers beginning service after June 1, 2014 will have received from us a letter enclosing this Agreement and describing the services you have requested or are receiving from us (the “Customer Safety Packet”), and certain other information. You should review the Service Letter carefully and notify us immediately at the telephone number listed on the Service Letter (the “Customer Service Number”) if any information contained on it is incorrect. All information contained on the Service Letter will be considered accurate and applicable to this Agreement until you notify us otherwise or we send you a new Service Letter. The current list of fees and charges (the “Current Charges List”) as specified in Section I of this Agreement are subject to change at any time. THE HILL COUNTRY HYDRO GAS, INC. PROPANE CUSTOMER SAFETY PACKET IS INCLUDED WITH THIS AGREEMENT. YOU AGREE THAT YOU MUST FOLLOW ALL OF THE INSTRUCTIONS IN THE SAFETY PLAN. THE SERVICE LETTER AND THE SAFETY PLAN ARE PART OF THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE THE SERVICE LETTER OR THE SAFETY PLAN, YOU SHOULD CALL THE CUSTOMER SERVICE NUMBER AND REQUEST ANOTHER COPY.
Section I is applicable to all purchases of Propane from us. Section II is applicable to rental of equipment from us. Section III describes your payment obligations to us. Section IV applies to equipment purchase, service, and repair. Section V is applicable to all types of transactions with us.
I. TERMS APPLICABLE TO PROPANE PURCHASES You obtain Propane delivery from us through one of the services described below (“Service”), which will be specified on the Service Letter. Terms of each Service are described in more detail in this Section I. For additional questions or information, you may contact us at the Customer Service Number.
1. Bulk Service.
a. General. If the Service Letter does not specify otherwise, you are obtaining bulk delivery of Propane (“Bulk Service”), and we will deliver Propane into the bulk tank or the cylinder(s) you rent from us or own (in either case, the “Tank”). If you rent your Tank from us, you agree to purchase from us exclusively. If you fail to purchase solely from us, we will terminate this Agreement and cease delivery of Propane to you, as well as pick up the Rent Tank without any prior notification to you. Any propane in the tank at the time of pick up will become the property of Hill Country Hydro Gas, Inc., without any reimbursement to customer. The maximum charges for Tank Rent are set forth on the Current Charges List. If you have Bulk Service, you will own all Propane delivered by us to your Tank from the time the Propane is delivered and paid for in full.
b. Customer-Owned Tanks. If you own the Tank where you have requested us to deliver Propane, we reserve the right (but have no obligation) to inspect your external system for delivery of Propane, including external components such as your Tank regulators and vents (excluding exhaust vents for products of combustion) (the “System”). The purpose of any such inspection is to determine whether we believe your System is safe and adequate for the storage of Propane. If we choose to deliver Propane to you, we may require you to upgrade your System to meet our safety standards. By inspecting your System, we make no representation or warranty to you concerning the safety or adequacy of your System. You are responsible for any loss or damage caused by your System. You are required to maintain and pay all expenses for maintaining your System and all hoses, meters, or other equipment which are part of your System. If we determine that your System is no longer adequate for delivery of Propane, we will terminate Service. If inspections, testing, or repairs are required by applicable federal, state, or local laws, regulations or ordinances (“Applicable Laws”), you will be responsible for the cost and completion of all such work and for property repair, including landscaping costs, if any, related to such work.
2. Purchase Price. We offer a daily price to our Customers based on their specific Customer information. These prices are set by us in our discretion and may vary due to a variety of factors, including without limitation: propane commodity prices and supply points, costs of transportation and storage, geographic location of the Customer in relation to our service units and supply points, volume usage, whether the Customer owns or leases the propane tank, and whether the Customer is Route or Will Call. You agree to pay our current daily price for Propane unless you have a different agreement in place that determines the purchase price. If you have chosen Will Call service, the daily price will be determined on the date your delivery order is accepted. If you have chosen Route service, the daily price will be determined on the date of the delivery. Hill Country Hydro Gas, Inc. reserves the right to set its daily price and to vary that pricing among its Customer types at its sole discretion. Payment terms are set forth in Section III.
3. Delivery of Propane. The Service Letter indicates whether you have chosen to have Propane delivered when you order it (“Will Call”) or for it to be delivered on your scheduled delivery date as determined by the office during scheduled delivery months (“Route”). If your Property is not continuously occupied, but you have requested a Route arrangement, we may require a modified Route arrangement. The terms of Will Call and Route are described below. We will deliver Propane according to a schedule that we establish. If you request us to deliver Propane to you at other times or on an emergency basis, we may, at our option, impose a Weekend Delivery Fee (any time outside of normal business hours which are Monday through Friday from 8 AM to 5 PM) or an Out of Gas fee that is associated with testing your system (as set forth on the Current Charges List). You authorize us to make delivery of Propane whether or not you are present. IF YOU RUN OUT OF PROPANE FOR ANY REASON, WE WILL NOT BE RESPONSIBLE FOR ANY CONSEQUENTIAL DAMAGES YOU MAY INCUR, INCLUDING WITHOUT LIMITATION, FROZEN PIPES OR DAMAGE TO BUILDINGS, POULTRY, OR LIVESTOCK. All sales of Propane are final.
a. Will Call. If you have chosen Will Call, we will not deliver Propane until you call and request delivery. You should call not less than five (5) business days prior to the date you anticipate needing Propane. If you call with less than five (5) business days notice, we may not be able to meet your schedule and you may incur additional costs associated with retesting your System. We suggest that you call us when your Tank reaches twenty percent (20%) capacity.
b. Route System. If you have chosen Route System, we will deliver Propane to you from time to time on our schedule when we believe that delivery is appropriate. YOU WILL NOT BE CONTACTED IN ADVANCE OF THE DELIVERY. We will use reasonable commercial efforts to keep your Propane supply adequate, but make no representation that we will inspect your Propane supply on a specific schedule. Weather conditions or a change in your circumstances can dramatically affect your Propane use. Accordingly, you must inspect the amount of Propane available from time to time, especially if you have had a period of unusually high usage. If you are a Route Customer, we will give you priority service if your supply is low or if you run out of Propane. We will not charge you an additional delivery charge under these circumstances. We have the right to determine when to fill your Tank. If you refuse to allow us to fill your Tank at any time we may, in our discretion, convert you to Will Call. If the Property where the Propane is delivered is not your primary residence or is occupied or used by you only part of the year, the standard Route arrangement may not be available, in our discretion, and we may require a modified Route arrangement. If so, you must notify us in advance of any significant increase or decrease in your Propane use from the prior month. If there is a significant increase in usage such that more than one delivery per month is required, we reserve the right to suggest that customer increase the size of their propane tank.
4. Your Responsibility for Your Tank. If you are renting a tank from us, you own and are solely responsible for the inspection and maintenance of all piping, equipment, and/or appliances, which are downstream of any regulator that is owned or maintained by us for Bulk Service. If you own the Tank, you are solely responsible for the inspection or maintenance of the System. Whether you rent or own your Tank, it is your duty to inform us about all work of any nature on any part of your System and/or other related appliances, including but not limited to repair, removal, installation, adjustment, modification, maintenance, and/or service of any part of the System and/or related appliances.
5. Your Safety Responsibilities. You have received the Safety Packet, but if not, you may pick one up at the office or one can be mailed to you upon request. You understand that the odor of ethyl mercaptan can fade in certain circumstances, as described in the Safety Packet. You must also read all safety warnings and operating instructions provided by us or anyone else in connection with the use of Propane or provided with any equipment or appliances (“Instructions and Warnings”). If you do not understand the Safety Packet or the Instructions and Warnings, you should call us at the Customer Service Number. You agree to follow all instructions in the Safety Packet and the Instructions and Warnings. You must make all employees, tenants, or other residents aware of the Safety Packet and the Instructions and Warnings and train any employee or resident who uses Propane to use it in accordance with the Safety Packet and the Instructions and Warnings. YOU AGREE THAT IN THE EVENT YOU OR ANY EMPLOYEE, TENANT, OR OTHER RESIDENT DOES NOT FOLLOW THE GUIDELINES AS SET FORTH IN THE SAFETY PACKET AND THE INSTRUCTIONS AND WARNINGS, WE WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT MAY RESULT OR OCCUR, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE. It is your duty to inform us about all work of any nature on any part of your System and/or related appliances, including but not limited to repair, removal, installation, adjustment, modification, maintenance, and/or service of any part of the System and/or related appliances.
6. CURRENT CHARGES LIST. We reserve the right to charge up to and including the maximum fees shown on the current charges list shown below. These fees are not government-imposed and are set by us in our discretion. However, not all fees may be applicable to you depending on your service level and location.
CURRENT CHARGES LIST
MAXIMUM FEES CHARGES EXPLANATION
Charges to Discontinue Service
Tank Pump Out Charge Hourly Rate Empty Tank prior to pickup.
Tank Pick-Up Charge Hourly Rate Remove Tank from Customer’s property.
Out of Gas Delivery $100.00 Customer requests delivery after the tank has run out of gas
Weekend Delivery $100.00 Customer requests delivery outside of normal business hours.
(Monday through Friday from 8AM to 5PM)
Tank Rent (with two (2) year round propane appliances)
250 Gallon Tank $7/month Charge for tank rental
500 Gallon Tank $15/month Charge for tank rental
Service Work Charges Hourly Rate Work such as installation or removal of tank, piping, equipment, etc.
Please visit www.hillcountryhydrogas.com or contact your local office if you have any questions about your Hill Country Hydro Gas, Inc. service or the fees outlined above.
II. TERMS APPLICABLE TO TANK RENTAL
1. Limitations On Use. You will not permit any Propane or other product to be delivered into the Rent Tank by anyone other than us. The Rent Tank must not be moved, handled, or maintained by anyone other than us or someone authorized by us. You may not move the Rent Tank to any location other than the location where we installed it, without our express authorization. Call us at our Customer Service Number if maintenance or repair is needed. YOU AGREE THAT IF YOU DO NOT STRICTLY FOLLOW THESE LIMITATIONS ON USE, WE WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT MAY OCCUR OR RESULT FROM YOUR USE OF PROPANE OR OTHER PRODUCTS OBTAINED FROM US, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE.
2. Your Inspection Obligations. You must regularly inspect the Rent Tank. You must inform us at once if the Rent Tank has sustained any damage. Follow the emergency procedures in the Safety Packet any time you smell odorized Propane or believe the Rent Tank to be damaged.
III. PAYMENT TERMS FOR PROPANE PURCHASE, TANK RENTAL, AND RELATED CHARGES
1. Payment Obligation. You agree to pay us for all Propane delivered, the rental price for the Rent Tank, and all other charges which you incur in accordance with the payment option applicable to you. Your payment option plan is Pay in Advance unless other arrangements have been made and you are notified that you have been accepted into one of the other alternative payment option programs, as described below (Pay in Advance, Cash on Delivery, or Statement Billing). You agree to pay all amounts you owe us at the time you are required to pay. We will apply payments to the oldest balance due. If you fail to pay us when payment is due, we may refuse to deliver Propane to you until you pay your outstanding balance and pay in advance for future delivery.
2. Payment Options.
a. Pay in Advance/Cash on Delivery If you are a Customer who must pay in advance of delivery, no Propane will be delivered to you unless you have paid in full prior to delivery (“Pay in Advance”). You may pay in advance by hand-delivering your payment at our local office at the address on your Service Letter, or you may pay by credit card or electronic funds transfer by calling the Customer Service Number. Service will not be provided until we have actually received your payment. You should mail payments no less than seven (7) business days prior to the date you wish to have Service, or hand-deliver your payment at our local office no less than one (1) business day prior to the date you wish to have Service. You will receive credit on the following business day for credit card payments by telephone or after our receipt of an electronic funds transfer. You may call us at the Customer Service Number if you have any questions about making payments. If you are a Pay in Advance customer, we may allow you to pay on a “Cash on Delivery” or “C.O.D.” basis, at our sole discretion from time to time. We may at our discretion, inform you at any time that you no longer qualify for C.O.D. payment and require you to pay in advance. Certain costs may be billed to you after they are incurred even if you are a Pay in Advance Customer.
b. Statement Billing. If you have elected and are approved for statement billing, we will bill you after delivery by sending you a statement after the Rent Tank or Propane has been delivered to you that will include all applicable charges (“Statement Billing”). Payment will be due by the due date shown on the statement. We may, at our discretion, inform you that you no longer qualify for Statement Billing and require you to pay using other methods and remove you from Route status.
3. Billing Inquiries. If you have questions about your statements, you should call us at the Customer Service Number. You must call us within ten (10) days of receiving a statement, if you believe that any of the information on the statement is incorrect. Otherwise, you will be responsible for all amounts charged to you on the statement.
4. Credit Check. If you have requested or request in the future either Statement Billing, you have given us or will give us permission to obtain your credit information from consumer reporting agencies at any time. If we determine that we will no longer make Budget Billing or Statement Billing available to you because of your credit information, or for any other reason, we will notify you that you must pay in advance for future Service.
5. Payment of Other Charges. Your payment for Propane delivery and Rent Tank does not include certain other charges that are set forth on the Current Charges List. If you are a Pay in Advance Customer, you must pay installation and connection charges prior to installation. Statement Billing Customers will be billed for installation and connection charges after those charges are incurred. Certain other charges will be billed to all Customers. Payment is due and payable on the due date shown on your statement.
6. Late Payment Charges and Returned Check Fees. Your payment for delivery of Propane or any other Service, which is billed to you on a statement, is due upon receipt of the statement. You understand and agree that in the event that you do not pay for Service on time, we will be damaged. It would be difficult to ascertain the extent of actual damages incurred by us. Accordingly, if you are a residential Customer we will charge you a late charge equal to one and one-half percent (1.5%) of the amount past due if you have not paid for deliveries or other amounts billed to you for the first time on each statement by the date that is thirty (30) days after the date of the service being rendered. If you are not a residential Customer, we will charge you the late charge if you do not pay in accordance with the payment terms we have established for you. Whether a residential Customer or not, we will assess an additional late charge of one and one-half percent (1.5%) for each succeeding monthly billing date on which a past-due balance remains. You agree that the late charge is liquidated damages and is not a penalty. If your check, draft, or electronic funds transfer is returned for insufficient funds, we will also charge you thirty dollars ($30) or the highest amount permitted under applicable state law for the returned check, whichever is less.
IV. PRODUCT PURCHASE, SERVICE, AND REPAIR
1. Purchases. If you purchase tanks, appliances, or products (“Products”) from us, you will have sole responsibility for the Products after purchase. You will be responsible for maintaining the Products in accordance with all Applicable Laws and industry standards, including without limitation, any standards set forth by the National Fire Protection Association, the United States Department of Transportation, and the American Society of Mechanical Engineers (“Industry Standards”).
a. Use of Purchased Tanks. You will use any new or used Propane tank purchased from us which is not designated as a “condemned tank” solely for the storage and use of Propane to be consumed in accordance with all Applicable Laws. If you have purchased a tank that we have designated as a “condemned tank,” you may not use the tank for Propane storage, the storage of any other compressed gas, or for any other use as a pressure vessel.
b. Your Inspection. You will have an opportunity to inspect and become familiar with the condition of the Products you purchase prior to purchase. You may conduct any mechanical inspections or investigations you deem appropriate. All sales are final.
c. Environmental Matters. You release us from any and all claims, demands, obligations, causes of action, and liabilities arising out of or in any way related to the presence of hazardous substances (as defined below) on, in, or under the Property where the Product purchased is located, regardless of how or when such hazardous substances came to be located on, in, or under the Property. You agree to protect, defend, indemnify, and hold us harmless from and against any and all claims, demands, losses, liabilities, penalties, fines, and any other costs and expenses (including attorney’s fees) which arise out of or in any way are connected to the presence of any hazardous substances on, in, or under the Property or the Product, regardless of how or when such hazardous substances came to be located on, in, or under the Property or the Product. The term “hazardous substances” shall mean any substance or substances which at any time shall be listed as “hazardous” or “toxic” under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.S. 9601 et. seq. as amended, and shall also include, without limitation, liquefied petroleum gas (including Propane and any additives thereto), petroleum products or by-products and constituents, and any other material or substance termed “hazardous” under any other federal, state, or local law, rule, regulation, or ordinance.
d. Exclusive Remedy. Your exclusive remedy for defective title or goods shall be limited solely to a refund of the purchase price. No other remedy (including but not limited to the recovery of direct, incidental, special, or consequential damages for lost profits, lost sales, injury to persons or property, or any other loss) shall be available to you, whether by direct action, claim for contribution, indemnity, or otherwise, and whether based on contract, tort, or other legal theory. This exclusive remedy shall not be deemed to have failed of its essential purpose as long as we are willing and able to carry out the terms of the remedy set forth herein.
e. Personal Injury and Property Damage. YOU AGREE TO RELEASE AND HOLD US HARMLESS, AS WELL AS OUR EMPLOYEES, DIRECTORS, AGENTS, OR ASSIGNS, FOR YOUR OR YOUR GUESTS’, INVITEES’, FAMILY MEMBERS’, EMPLOYEES’, AGENTS’, CONTRACTORS’, AND/OR CUSTOMERS’ NEGLIGENCE, BREACH OF WARRANTY, OR STRICT LIABILITY. YOU AGREE TO PAY ALL SETTLEMENTS, AWARDS, JUDGMENTS, AND EXPENSES, INCLUDING ATTORNEY’S FEES ARISING OUT OF OR RESULTING FROM YOUR OR YOUR EMPLOYEES’, CONTRACTORS’, AND/OR CUSTOMERS’ USE OF ANY EQUIPMENT PURCHASED FROM US.
2. Service, Inspection and Repair.
a. Hill Country Hydro Gas, Inc. Initial Gas Check. We must perform an initial gas check in accordance with our policies prior to starting the delivery of Propane to a new Customer and at such other times as we determine, in our discretion, from time to time. The cost of a Hill Country Hydro Gas, Inc. Initial Gas Check will be charged to you. In the event that we discover a leak or other unsatisfactory condition during a Hill Country Hydro Gas, Inc. Initial Gas Check, you must have the identified problem corrected at your expense if you own the affected equipment. You must also pay to have the identified problem corrected at your expense if you have the obligation to pay as set forth in Section II.1 or any other section of this Agreement. We will not be responsible for undiscovered defects in materials, equipment, or appliances on your premises.
b. Service. We may perform maintenance, repair, testing, or inspection services for you from time to time. These services may result in a cost to you at our then-current rates. During a Hill Country Hydro Gas, Inc. Initial Gas Check or other maintenance, repair, testing, or inspection service performed by us, we will use our reasonable commercial efforts to determine problems with your System. However, not all problems can be detected and some problems may develop later. You must notify us at the time of inspection of any hidden, known, or suspected defects. You must follow the guidelines in the Safety Packet at all times and visually inspect your System and equipment from time to time for signs of damage or wear, and notify us if you detect any problems. We will not inspect your appliances or equipment, and we make no representations and warranties to you as to whether your appliances or equipment are in a safe condition, unless expressly stated in writing. We undertake no responsibility for the continuing maintenance or inspection of your System. We have no responsibility or liability for any part of your System not specifically described in writing at the time service is performed.
c. Installation. Prior to installing a new System, you should request us to specify where your System should be located. You must install or have the System installed at the location we specify. You may not move, open, or tamper with the System after it is installed in any manner. If you need to move the System or any part of the System, you must call us to provide this service for you.
V. GENERAL TERMS APPLICABLE TO ALL SERVICES, MAINTENANCE, INSPECTION, TESTING, AND REPAIR
1. Access to Property. You agree that our representatives may enter your Property (even if you are not present) for the purpose of making deliveries of Propane, for gaining access to equipment into which Propane is delivered, for repairs and maintenance, for installing or removing property belonging to us, for investigating the cause of any fire or accident, and for any other purpose related to the Service. We may refuse to provide Service if we believe that we cannot safely make delivery due to conditions on or approaching your Property, including unsafe road conditions, dangerous animals, or locked gates. You agree to maintain the Property in a condition so that the weight of our vehicle will not damage your driveway or yard, and agree not to hold us responsible for any such damage. You agree to provide ingress and egress to the equipment. You agree not to erect structures, fences, or other improvements and not to plant or grow trees or shrubs that restrict access to the equipment.
2. Monitoring your Property During Your Absence. If you leave your Property during the heating season or if your property is not continually occupied (such as a vacation home), you should have someone check your Property daily or otherwise monitor the Property with an alarm system to be sure that the heat is on. Power outages, a System failure, or running out of Propane can cause your Property to be without heat. We will not be responsible for losses caused by your failure to have your Property adequately monitored during your absence.
3. Compliance with Applicable Laws. You must comply with all Applicable Laws and Industry Standards concerning use or storage of Propane. You will pay any costs associated with repairs, modifications, or additions to equipment (including Rent Tank) required by Applicable Laws or Industry Standards.
4. Termination of Service. Service may be terminated under this Agreement without cause by either you or us by delivering written notice ten (10) days prior to termination. You may also terminate service by calling the Customer Service Number ten (10) days prior to termination. If you fail to perform any of your obligations under this Agreement or if we, in our discretion, believe any part of your System may not be safe, we may, at our option, immediately suspend Service until you cure the default or unsafe condition or may terminate Service under the Agreement. If you fail to make payment in accordance with our payment terms, or fail to perform any of your other obligations, or if you no longer occupy or use the Property, we may terminate Service without prior notice. In addition, Service will terminate without notice to you at our option upon the institution of any proceeding alleging that you are insolvent or unable to pay your debts, or on your death or dissolution, or if you take action to go out of business.
5. Effect of Termination. If Service is terminated, in addition to any other remedy we may have, we may adjust or disconnect the equipment to stop withdrawal of Propane from any Tank, pick up any Rent Tanks and repossess and dispose of any Propane left in the Tank. You will be responsible for paying all amounts you owe us under this Agreement even after termination. All of Section II, all of Section III, all of Section IV, and Sections V.1, 5, 6, 7, 8, 9, 10, and 11 will continue to apply even after termination of Service.
6. Indemnification; Hold Harmless. You shall indemnify and hold us, our officers, and our Employees and other representatives, harmless from and against any and all claims, losses, damages, causes of action, suits, liabilities, and judgments (including all expenses of litigation and reasonable attorney’s fees), injury to, or death of any person or for damages to any property to the extent that such injuries, death, or damages are caused by the negligence or the willful acts of you or your guests, invitees, family members, employees, agents, contractors, and/or customers or by the failure to follow your obligations as set forth in this Agreement.
a. Agreement to Arbitrate. You agree that any claim, dispute or controversy, whether in contract, tort (intentional or otherwise), including without limitation, product liability, property damage, personal injury claims, or claims based on strict liability, whether pre-existing, present, or future, and including constitutional, statutory, common law, regulatory, and equitable claims in any way relating to (a) the Service; (b) any Rent Tank or equipment sold to you by us; (c) the Agreement; (d) Propane delivered or sold by us; or (e) the Safety Packet, advertisements, promotions, or other brochures or writings prepared by us in any way relating to the Service or this Agreement and/or the relationship between you and us, including the validity, enforceability, or scope of this Section or any part thereof (collectively, a “Claim”) shall be resolved, upon the election of either you or us, by binding arbitration.
b. Process for Arbitration. Arbitration will be governed by this Section V.7 and the applicable rules of either the American Arbitration Association, JAMS/Endispute, or the National Arbitration Forum in effect at the time the Claim is filed. The party initiating the arbitration proceeding shall have the right to select one (1) of the above arbitration administrators. The Claim shall be heard by a panel of three (3) independent arbitrators. Each party shall appoint one (1) arbitrator within sixty (60) days of the initiation of the arbitration proceeding, and the third impartial arbitrator must be an attorney with more than ten (10) years experience or a judge or retired judge and be appointed by the other arbitrators within thirty (30) days after appointment of the arbitrators appointed by the parties. The arbitration shall take place in the state in which Service is provided to you. In the event of a conflict between this Section V.7 and the rules of the arbitration administrator, this Section V.7 will govern. This Section V.7 shall not apply to (i) Claims for payment of amounts due for Propane purchases or equipment rental, including all applicable fees, late payment charges, returned check charges, and collection costs or (ii) to any Claim which you could bring as an individual in a small claims court or an equivalent court.
c. No Class Action. No class actions or joinder or consolidation of claims with other persons are permitted in the arbitration without the consent of both you and us. The arbitration administrators selected pursuant to Section V.7.b above are authorized to arbitrate disputes as to any Claim brought by you against us or by us against you and, without our consent, are not authorized to arbitrate any similar or identical claims brought by other persons.
d. General Statements. This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16 (the “FAA”). The arbitrators shall apply substantive law consistent with the FAA and the arbitrators’ award shall not be subject to appeal, except as permitted by the FAA. Nothing in this Section shall be construed to prevent our use of offset or other contractual rights to pay off any amounts you owe to us. YOU ACKNOWLEDGE THAT YOU HAVE A RIGHT TO LITIGATE CLAIMS IN COURT BEFORE A JUDGE OR JURY, BUT YOU PREFER TO RESOLVE ANY SUCH CLAIMS THROUGH ARBITRATION AND KNOWINGLY AND VOLUNTARILY WAIVE YOUR RIGHTS TO LITIGATE SUCH CLAIMS IN COURT BEFORE A JUDGE OR A JURY, UPON ELECTION OF ARBITRATION BY YOU OR BY US. YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION, EVEN IF SUCH CLASS ACTION IS PENDING ON THE EFFECTIVE DATE OF THIS ARBITRATION PROVISION, EXCEPT THAT THIS ARBITRATION PROVISION WILL NOT PRECLUDE YOUR PARTICIPATION IN A CLASS WHICH HAS ALREADY BEEN CERTIFIED ON THE EFFECTIVE DATE OF THIS ARBITRATION PROVISION. THIS SECTION 8 APPLIES ONLY TO THE EXTENT PERMITTED UNDER STATE LAW.
8. Limited Warranty, Disclaimer. We warrant that at the time we transfer ownership of Propane or any other Product to you, we will transfer it free from all liens, claims, and encumbrances. WE MAKE NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, DIRECT OR INDIRECT, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NONINFRINGEMENT, SUITABILITY, MERCHANTABILITY, FITNESS FOR USE, OR FITNESS FOR A PARTICULAR PURPOSE OF THE PROPANE OR EQUIPMENT. WE EXPRESSLY DISCLAIM AND EXCLUDE ALL SUCH REPRESENTATIONS AND WARRANTIES AND DO NOT PERMIT ANYONE, INCLUDING OUR EMPLOYEES, AGENTS, OR REPRESENTATIVES, TO MAKE A WARRANTY OF ANY KIND ON OUR BEHALF. ALL EQUIPMENT, USED OR NEW, IS PROVIDED “AS IS.”
9. Limitations of Liability. YOU AGREE THAT UNDER NO CIRCUMSTANCES WILL WE BE LIABLE FOR INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR INCREASED COSTS OF OPERATION. WE WILL ALSO NOT BE LIABLE FOR PUNITIVE, INCIDENTAL, EXEMPLARY, OR SPECIAL DAMAGES. THESE LIMITATIONS APPLY EVEN IF THE DAMAGES WERE FORESEEABLE OR IF WE WERE TOLD THEY WERE POSSIBLE. THESE LIMITATIONS APPLY WHETHER THE CLAIM IS BASED ON CONTRACT, TORT, PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY.
10. Amendment. We may amend this Agreement – including the Current Charges List – at any time.
11. Property Issues.
a. Sale of Property. If you own the Property where Propane is delivered or Rent Tank is installed, you must give us thirty (30) days’ prior notice in writing or by calling the Customer Service Number before you sell the Property.
b. Landlord. If you are a landlord and are renting out the Property where Propane is delivered or Rent Tank is installed, you must inform any and all tenants of the presence of Propane-operated appliances or other equipment on the premises. You must notify us in writing at least thirty (30) days prior to a change in occupancy. You must supply us with the current tenant’s name, telephone number, and the date on which he or she plans to take possession of the Property. You must also supply thirty (30) days’ advance written notice to us and to any tenants of any installation, service, repair, or removal of Propane lines or equipment. If your tenant leaves the Property, you will be responsible for any Propane used after the tenant has given up possession.
c. Tenant. If you are a tenant, and you rent or have some other right to use the Property where Propane is in use, you acknowledge the presence of Propane-operated appliances on the Property. You must supply us with your landlord’s name, address, and telephone number. You must notify us in writing at least thirty (30) days prior to the date on which you plan to surrender possession. You must also supply thirty (30) days’ advance written notice to us and to the landlord of any installation, service, repair, or removal of Propane lines or equipment.
a. Waiver. Our waiver or delay of enforcement of any of our rights under this Agreement shall not prevent us from enforcing those rights at a later date and shall not constitute a waiver of any subsequent breach of this Agreement by you.
b. Severability. If any provision of this Agreement is found invalid, the rest of this Agreement will remain enforceable.
c. Entire Agreement. This Agreement, together with the Service Letter and Safety Packet and any written agreements signed between us that are limited to pricing and cover the current period, constitute the entire agreement between us. No Employee, representative, or agent has any authority to vary the terms of this Agreement.
d. Acts Beyond Our Control. We will not be responsible for any delay; failure of performance; loss or damage due to fire, explosion, power blackout, earthquake, flood, or weather elements; strike; labor disputes; embargo; civil or military authority; war; acts of God; acts of carriers or suppliers (including shortages or pipeline allocations); acts of terrorism; acts of governmental agencies; or other causes beyond our reasonable control. We will have no obligation to purchase Propane for delivery and sale under this Agreement from others in order to replace Propane which is not available due to circumstances beyond our control.
e. Notices. Notices to you from us under this Agreement will be made by mailing notice to you either under separate cover or by including notice with a billing statement. Notices will be effective upon deposit into the U.S. mail. Notices from you to us will be effective by mailing written notice to us at the address on your Service Letter.
f. Assignment. You may not assign your rights under this Agreement to any other party. We may assign our rights and obligations under this Agreement at any time without notice to you.
g. Governing Law. This Agreement and all Service performed under this Agreement are governed by the law of the State of Texas, without regard to choice of law rules, except that the arbitration provisions in Section V.7 are governed by the FAA.