This Customer Agreement (the “Agreement”) is between you and Kimlin Energy (as defined below). The Agreement will deemed to have been accepted and binding on the parties when either of the following first occurs: (1) you request or accept delivery of Services (as defined in the Supply Order) from Kimlin Energy; or (2) you permit equipment leased from Kimlin Energy to remain on your property for more than thirty (30) days after your receipt of this Agreement; or (3) you do not contact Kimlin Energy, in writing, within thirty (30) days after your receipt of this Agreement and request termination of Services.
The words “we”, “us”, “our”, “ours”, “Kimlin” and “Kimlin Energy” refer to Kimlin Propane Co. Inc., a corporation with its principle place of business at 14 Steves Ln, Gardiner, NY 12525. The words “you”, “your”, “yours” and “Customer” refer to any person or entity who (a) requests delivery of propane or equipment from Kimlin, (b) permits propane or equipment to be delivered by Kimlin, or (c) permits propane or equipment obtained from Kimlin to be retained on premises which the person or entity owns, rents, or has a right to use (the “Property”).
Kimlin Energy will provide a Supply Order (the “Supply Order”), which contains the description of the Customer’s request for Services from Kimlin Energy. The Customer should review the terms of this Agreement and Supply Order carefully and notify Kimlin Energy immediately at the telephone number printed at the bottom of the Supply Order (the “Customer Service Number”) if any information contained or provided in this Agreement or Supply Order is incorrect. Kimlin propane shall also provide a safety plan (the “Safety Plan”) to its Customer and the Customer agreed to comply with the Safety Plan in all circumstances. If you do not have Supply Order and the Safety Plan, you should call the customer service number and request another copy. If the Services are requested by any family member or anyone who has used the registered Customer’s account for delivery of Services, and such services require credit approval, the Customer and the person requesting the Services will be jointly and severally responsible for complying with this Agreement and for payments due to Kimlin.
Article I is applicable to propane purchases. Article II is applicable to rental of equipment. Article III describes the Customer’s payment obligations to Kimlin Energy. Article IV applies to equipment purchase, service, and repair. Article V is applicable to all types of transactions between you and Kimlin Energy.
The delivery of propane shall be made to the Customer in accordance with the Services selected in the Supply Order. The delivery terms for the supply of propane are described in detail in this Article I of the Agreement:
1. Delivery of Propane. The Supply Order indicates whether the Customer has chosen to have propane delivered on call by the Customer (“Will Call”) or has opted for Kimlin Energy’s scheduled quarterly delivery. If the Customer’s Property is not continuously occupied, and the Customer has opted for scheduled delivery option, Kimlin Energy reserves the right to modify the plan as per the Customer’s usage. Kimlin Energy will deliver propane according to their standard schedule, which will be provided to the Customer. The additional delivery charges (as per prevailing market rates) shall be payable by the Customer when the Customer makes a request for delivery at times other than the scheduled delivery date or any request is made on an emergency basis. The Customer authorizes Kimlin Energy to make delivery of propane regardless if the Customer is present or not at the premises where delivery is to be made. If the Customer runs out of propane for any reason, Kimlin Energy will not be responsible for any consequential damages the Customer may incur, including without limitation, frozen pipes or damage to buildings, poultry, or livestock. The Customer shall be responsible to monitor the propane level in his/her tank to ensure that the Customer does not run out of propane.
2. Customer-Owned Tanks. If the Customer owns the tank, Kimlin Energy reserves the right (but has no obligation) to inspect the external system for delivery of Propane, including external components such as the tank regulators and vents (excluding exhaust vents for products of combustion) (the “System”). The purpose of any such inspection is to determine whether Kimlin Energy believes the System is safe and adequate for the storage of Propane. If Kimlin Energy chooses to deliver propane to the Customer, Kimlin Energy may require the Customer to upgrade the System to meet safety standards. By inspecting the System, Kimlin Energy makes no representation or warranty to the Customer concerning the safety or adequacy of the System. The Customer is responsible for any loss or damage caused by the defective System. The Customer is required to maintain and pay all expenses for maintaining the System and all hoses, meters, or other equipment which are part of the System. If Kimlin Energy determines that the System is no longer adequate for delivery of propane, Kimlin Energy will terminate the Services. If inspections, testing, or repairs are required by applicable federal, state, or local laws, regulations, or ordinances (“Applicable Laws”), the Customer 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. The Minimum Volume Requirement is not applicable on tanks owned by the Customer.
3. Purchase Price. Kimlin Energy offers a daily price based on the specific the Customer’s requirement. Kimlin Energy has a discretion to set daily prices of propane and such prices 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 under automatic delivery plan or Will Call. The Customer agrees to pay the current daily price for Propane unless the Customer has agreed to any price plans provided by Kimlin Energy. If the Customer has chosen Will Call service, the daily price will be determined on the date of the order. Kimlin has the right to change to its price anytime upon thirty (30) days prior notice to you. The Customer may obtain the daily price by calling their local Service Center. Payment terms are set forth in ARTICLE III.
4. The Customer’s Responsibility for the Equipment. If the Customer is renting equipment from Kimlin Energy, the Customer is solely responsible for the inspection and maintenance of all piping, equipment, and/or appliances. If the Customer owns the tank, the Customer is solely responsible for the inspection or maintenance of the System. Whether the Customer rents or owns the tank, it is the Customer’s duty to inform Kimlin Energy about any repair, removal, installation, adjustment, modification, maintenance, and/or service of any part of the System and/or related appliances. The Customer understands and agrees that Kimlin Energy has no obligation to inspect or maintain any equipment that Kimlin Energy has not committed in writing to inspect or maintain.
5. Safety Responsibilities. The Customer must read carefully all safety warnings and operating instructions provided by Kimlin Energy in connection with the use of Propane or provided with any equipment or appliances (“Instructions and Warnings”). If the Customer does not understand the Safety Plan or the Instructions and Warnings, the Customer should call Kimlin Energy at the Customer Service Number. The Customer agrees to follow all instructions in the Safety Plan and the Instructions and Warnings. The Customer must make all its employees, tenants, or other person residing or working at the Customer’s premises aware of the Safety Plan and the Instructions and Warnings and train any employee or resident who uses Propane to use it in accordance with the Safety Plan and the Instructions and Warnings. THE CUSTOMER AGREES THAT IN THE EVENT THE CUSTOMER OR ANY EMPLOYEE, TENANT, OR OTHER RESIDENT DOES NOT FOLLOW THE SAFETY PLAN AND THE INSTRUCTIONS AND WARNINGS, KIMLIN ENERGY WILL NOT BE RESPONSIBLE FOR ANY DAMAGES THAT MAY RESULT OR OCCUR, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE.
6. Equipment Rental. If the Customer is renting equipment from Kimlin Energy, the equipment includes all tanks, cylinders, and related equipment and appurtenances, including but not limited to all first stage regulators, pigtails, additional hoses, and other components included in rental package (the “Rented Equipment”). Kimlin Energy will deliver the Rented Equipment to the Customer and install it, if installation is required. The Customer agrees to rent the Rented Equipment for the term specified in the Supply Order (“Lease Term”), unless changed by mutual consent. Rental payments will not be credited, refunded, or prorated if service terminates before the Lease Term expires. If the Customer has a question about your rented equipment, call our Customer Service Number. The rented equipment belongs to Kimlin Energy even though it may be on, fastened to, or attached to your Property. The Customer is responsible for the repair of any damage caused to the Rented Equipment while on Customer’s premises. If the Customer recovers insurance proceeds for loss of the Rented Equipment for any reason, the Customer must deliver the proceeds to Kimlin Energy for replacement of the rented equipment.
7. Limitations on Use. The Customer will not permit any Propane or other product to be delivered into the rented equipment by anyone other than Kimlin Energy. The rented equipment must not be moved, handled, or maintained by anyone other than Kimlin Energy or someone authorized by Kimlin Energy. The Customer may not move the Rented Equipment to any location other than the location where we installed it, without our express authorization. Call Kimlin Energy at Customer Service Number if maintenance or repair is needed. The Customer agrees that if the Customer fails to follow these limitations on use, Kimlin energy will not be responsible for any damages that may occur or result from use of propane or other products obtained from Kimlin Energy, including but not limited to personal injury, death, or property damage.
8. Inspection Obligations. The Customer must regularly inspect the Rented Equipment. The Customer must inform Kimlin Energy at once if the Rented Equipment has sustained any damage. Follow the emergency procedures in the Safety Plan any time the Customer smells gas/propane or believe the Rented Equipment to be damaged.
9. Underground Tanks. An underground tank may be purchased or leased from Kimlin Energy for an annual rental fee. The Customer should call the Customer Service Number to find out if this option is available in nearby area. If the Customer buys an underground tank or rents an underground tank, the Customer will be responsible for paying all fees for installation as well as for repairs and replacement of property, including landscaping, caused by or related to the installation of the underground tank. The Customer may not remove or replace stakes or markers placed on the Property to mark the tank’s location without Kimlin Energy’s prior consent. At the end of the usable life of the tank, as determined by Kimlin Energy’s discretion, or on termination of this Agreement if the Customer rents the tank, the Customer must pay all costs incurred in relation to the removal and transportation of the tank in accordance with all Applicable Laws and for all costs associated with damage to the Property as a result of removal, including landscaping. In case the Customer is renting the underground tank from Kimlin, it may exercise its option to purchase the tank from Kimlin by paying Tank Buyout Value, as provided in the Supply Order.
10. Payment Obligation. The Customer agrees to pay Kimlin Energy for all Propane delivered, the rental price for Rented Equipment, and all other charges which the Customer may incur in accordance with the payment terms applicable to the Customer. Your payment plan is Pay in Advance (as defined below in Section 11(a)) unless other arrangements have been made and the Customer is notified by Kimlin Energy that the Customer has been accepted into one of the other alternative payment options , as described below (Cash on Delivery or Statement Billing). The Customer agrees to pay all amounts the Customer owes to Kimlin Energy at the time the Customer is required to pay. Kimlin Energy will apply payments received first to the oldest balance due. If the Customer fails to pay Kimlin Energy when payment is due, Kimlin Energy may refuse to deliver Propane to the Customer until the Customer pays outstanding balance and pays in advance for future delivery..
11. Payment Options.
12. Billing Inquiries. If the Customer has questions about the statements, the Customer should call Kimlin Energy at the Customer Service Number. The Customer must call Kimlin Energy within ten (10) days of receiving a statement, if the Customer believes that any charges on the statement are incorrect. Otherwise, the Customer will be responsible for all amounts charged to the Customer on the statement.
13. Credit Check. If the Customer has requested or requests in the future for Statement Billing, the Customer has given Kimlin Energy or will give Kimlin Energy permission to obtain the Customer’s credit information from consumer reporting agencies at any time. If Kimlin Energy determines that Kimlin Energy will no longer make Statement Billing available to the Customer because of credit information, or for any other reason, Kimlin Energy will notify the Customer that the Customer must pay in advance for future Service.
14. Payment of Other Charges. The Customer’s payment for Propane delivery and Rented Equipment does not include certain other charges that are set forth in Schedule of Charges and Fee, attached hereto as Schedule 1. If the Customer is a Pay in Advance Customer, the Customer 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. Any of the aforesaid charges or fees do not represent a tax or fee paid to or imposed by any governmental authority, and Kimlin Energy will retain all of the charges. Kimlin Energy has not specifically quantified the relationship between the charges and the actual costs associated with the charges, which can vary by product, service, time, and place, among other things.
15. Late Payment Charges and Returned Check Fees. The Customer’s payment for delivery of Propane or any other Service that is billed to the Customer i.e. Statement Billing is due upon receipt of the statement. The Customer understands and agrees that in the event that the Customer does not pay for Service on time, Kimlin Energy will incur a loss. It would be difficult to ascertain the extent of actual damages incurred by Kimlin Energy. Kimlin Energy will charge the Customer a late fee if the Customer does not pay in accordance with the payment terms Kimlin Energy has established for the Customer. Whether a residential Customer or not, Kimlin Energy will assess an additional late charge of two percent (2%) for each succeeding monthly billing date on which a past-due balance remains. If the state law where the Customer receives Service does not permit a late charge of two percent (2%) of the amount past due, Kimlin Energy will adjust the late charge to the highest amount permitted by Applicable Laws. The Customer agrees that the late charge is liquidated damages and is not a penalty. If the Customer’s check, draft, or electronic funds transfer is returned for insufficient funds, Kimlin Energy will also charge the Customer Sixty dollars ($60) or the highest amount permitted under applicable state law for the returned check, whichever is less.
16. Purchase of Equipment. If the Customer purchases tanks, equipment, or other appliances or products (“Products”) from Kimlin Energy, including purchasing equipment on a lease-to-own basis, the Customer will have sole responsibility for the Products after purchase. The Customer 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”).
17. Use of Purchased Tanks. The Customer will use any new or used propane tank (which is not designated as a “junk tank”) purchased from Kimlin Energy solely for the storage and use of propane to be consumed in accordance with all Applicable Laws. If the Customer has purchased a tank that we have designated as a “junk tank,” the Customer shall not use the tank for propane storage, the storage of any other compressed gas, or for any other use as a pressure vessel.
18. Inspection. The Customer will have an opportunity to inspect and become familiar with the condition of the Products the Customer purchases prior to purchase. The Customer may conduct any mechanical inspections or investigations the Customer deems appropriate.
19. Environmental Matters. The Customer releases Kimlin Energy 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. The Customer agrees to protect, defend, indemnify, and hold Kimlin Energy 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.
20. 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 the Customer , whether by direct action, claim for contribution, indemnity, or otherwise, and whether based on contract, tort, or other legal theory. .
21. Personal Injury and Property Damage. Unless otherwise caused by the gross negligence of Kimlin Energy, Kimlin Energy shall not be liable or responsible for: (a) any personal injury or consequential damage of any nature whatsoever, however caused, that may be suffered or sustained by the Customer or by any other person at the premises or (b) any loss or damage of any nature whatsoever, howsoever caused, to the premises, any property belonging to the Customer or to any other person while such property is in or about the Premises.
22. Service, Inspection and Repair.
23. Access to Property. The Customer agrees that our representatives may enter your Property (even if the Customer is 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 Kimlin Energy, for investigating the cause of any fire or accident, and for any other purpose related to the Service. Kimlin Energy may refuse to provide Service if Kimlin believes that delivery cannot be made safely due to conditions on or approaching your Property, including unsafe road conditions, dangerous animals, or locked gates. The Customer agrees 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 Kimlin Energy responsible for any such damage. The Customer agrees to provide ingress and egress to the equipment. The Customer agrees not to erect structures, fences, or other improvements and not to plant or grow trees or shrubs that restrict access to the equipment.
24. Monitoring your Property during your absence. If the Customer leaves its Property during the heating season or if the Customer’s property is not continually occupied (such as a vacation home), the Customer must 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. Kimlin Energy will not be responsible for losses caused by your failure to have your Property adequately monitored during your absence.
25. Compliance with applicable laws and regulations. The Customer must comply with all Applicable Laws, and Industry Standards concerning use or storage of propane. The Customer will pay any costs associated with repairs, modifications, or additions to equipment (including Rented Equipment) required by Applicable Laws or Industry Standards.
26. Termination of Service. Service may be terminated under this Agreement without cause by either the Customer or Kimlin Energy by delivering written notice ten (10) days prior to termination. The Customer may also terminate service by calling the Customer Service Number ten (10) days prior to termination. If the Customer fails 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 the Customer cures the default or unsafe condition or may terminate Service under the Agreement. If the Customer fails to make payment in accordance with our payment terms, or fails to perform any of its other obligations, or if the Customer no longer occupies or uses the Property, we may terminate Service without prior notice. In addition, Service will be terminated without notice to the Customer at Kimlin Energy’s option upon the institution of any proceeding alleging that the Customer is insolvent or unable to pay your debts, or on your death or dissolution, or if the Customer takes action to go out of business.
27. Effect of Termination. If Service is terminated, in addition to any other remedy Kimlin Energy may have, we may adjust or disconnect the equipment to stop withdrawal of propane from any tank owned by Kimlin, pick up any rented equipment and repossess and dispose of any propane left in the tank. The Customer will be charged a Tank Pick-Up Charge, a Tank Removal Fee (applicable to underground tanks) and other applicable charges as set forth in Schedule-I of this Agreement, and in effect at the time of termination. The Customer may be entitled to a credit or refund for any propane which remains in the tank, subject to tank pump-out and pick-up charges and other charges as set forth in Schedule-I of this Agreement. In the event that Kimlin Energy determines, in its sole discretion in accordance with its internal policies, to provide a refund for propane remaining in the tank, the refund will be applicable only to propane that we resell and the refund shall be based on the lower of the price at which the Customer purchased the propane or our current daily price for the propane at the time that we take possession of the propane. If the Customer has used less propane than the estimated amount, Kimlin Energy will, at its option, either refund the overpayment to the Customer or use the overpayment to reduce other amounts the Customer owes to Kimlin Energy. The Customer will be responsible for paying all amounts the Customer owe to Kimlin Energy under this Agreement even after termination. Sections 15, 20, 26, 27, 29, 30, 32 & 35 of this Agreement will continue to apply even after termination of Service.
28. Payment of Taxes, Losses, and Collection Costs. The Customer is responsible for paying any taxes, including sales tax and personal property taxes attributable to the propane and any rented equipment until termination of Service. The Customer is also responsible for paying for all loss or damage to rented equipment or propane owned by Kimlin Energy, except for damage to the rented equipment resulting from ordinary wear and tear. The cost of maintenance and repair of Rented Equipment as a result of ordinary wear and tear will be borne by Kimlin Energy. If inspection, testing, or repairs are required by Applicable Laws, the Customer must pay for all such work and for all costs associated with such work, including landscaping costs, if any. The Customer must pay all costs we incur to enforce any of the provisions of this Agreement, including reasonable attorney’s fees.
29. Indemnification; Hold Harmless. The Customer shall defend indemnify and hold harmless Kimlin Energy, 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 the Customer 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.
30. Dispute and Governing Laws. This Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its choice of law rules. In the event of any controversy, dispute or claim under or arising from this Agreement, the exclusive remedy of the parties shall be to submit such controversy, dispute or claim to binding arbitration as provided herein. All arbitration proceedings will be held under the then current Commercial Arbitration Rules of the American Arbitration Association (“the Association”) strictly in accordance with the terms of this Agreement and the substantive law of the State of New York. The arbitration shall be held at a mutually agreeable location in Orange County, NY. The arbitrator shall be selected by application of the rules of the Association, or by mutual agreement of the parties, except that such arbitrator shall be an attorney admitted to practice law in the State of New York. The parties shall not be entitled to conduct any discovery, however, a party may submit a request in writing to the arbitrator appointed to the matter seeking permission to conduct discovery. In its submission, the party seeking discovery must specify the type of discovery sought, the extent of the discovery, and provide facts justifying the materiality and need for the discovery. The party opposing the discovery may submit any appropriate writing in opposition to the request. In determining whether or not to grant the request for discovery, the arbitrator shall consider the submissions by both parties and shall also balance the purported need for the discovery with the time and expense of providing the discovery. All decisions of the arbitrator, including but not limited to discovery matters, shall be final and binding on the parties to this Agreement. The arbitrator shall also have the power to award costs and expenses (including, but not limited to, attorneys’ fees and Court costs) to the prevailing party. Application to enter a judgment on the arbitrator’s award may be made in any court of competent jurisdiction.
31. Limited Warranty, Disclaimer. Kimlin Energy warrants that at the time Kimlin Energy transfers ownership of propane or any other product to the Customer, Kimlin Energy will transfer it free from all liens, claims, and encumbrances. Kimlin Energy make no other representations or warranties of any kind, direct or indirect, express or implied, including without limitation, no infringement, suitability, merchantability, fitness for use, or fitness for a particular purpose of the propane or equipment. Kimlin Energy expressly disclaims and excludes all such representations and warranties and does 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.”
32. Limitations of Liability. THE CUSTOMER AGREES THAT UNDER NO CIRCUMSTANCES KIMLIN ENERGY WILL BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS OR INCREASED COSTS OF OPERATION, ARISING OUT OF OR RELATION TO PROVISION OF SERVICES BY KIMLIN ENERGY PURSUANT TO THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIM (WHETHER ARISING IN CONTRACT OR IN TORT (INCLUDING BREACH OF WARRANTY) AND EVEN IF SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
KIMLIN ENERGY’S LIABILITY IN CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE EMPLOYEES OR AGENTS OF KIMLIN ENERGY FOR DAMAGE TO PREMISES OR LANDSCAPING DAMAGE DURING INSTALLATION, DISCONNECTION, OR DELIVERY SHALL NOT EXCEED THE REASONABLE COST OF REPAIR, GRADING AND REPLACING LANDSCAPING AND IN NO EVENT SHALL EXCEED ONE THOUSAND DOLLARS ($1,000).
33. Amendment. Kimlin Energy may amend this Agreement – including the current charges– at any time by mailing a written notice to the Customer. The Customer agrees that the amendment will become effective thirty (30) days after your receipt of the notice unless the Customer contacts Kimlin in writing prior to its effective date and terminate Service.
34. Property Issues.