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COMPANY’S CYLINDER EXCHANGE TERMS AND CONDITIONS ARE SET FORTH BELOW.
PLEASE READ CAREFULLY, AS IT IS INTENDED TO MODIFY AND/OR REPLACE ALL PRIOR AGREEMENTS
AND GOVERNS YOUR RELATIONSHIP WITH AMERIGAS
TERMS AND CONDITIONS FOR CYLINDER EXCHANGE SERVICES
THESE TERMS AND CONDITIONS REQUIRE THAT DISPUTES BE RESOLVED INDIVIDUALLY IN BINDING ARBITRATION OR SMALL CLAIMS COURT. IN ARBITRATION, THERE IS NO JUDGE OR JURY AND THERE IS LESS DISCOVERY AND LESS APPELLATE REVIEW THAN IN COURT. YOU MAY REJECT THE ARBITRATION PROVISION BY SENDING WRITTEN NOTICE WITHIN 30 DAYS OF YOUR FIRST RECEIPT OF THESE TERMS AND CONDITIONS, AS DESCRIBED BELOW.
1. ACCEPTANCE OF THESE TERMS AND CONDITIONS. Your signature is not required. You (also referred to as “Customer” or “your”) are deemed to have accepted these Terms and Conditions by conducting business with AmeriGas Propane, L.P. (“Company”) (also referred to as “us”, “we”, and “our”), which includes but is not limited to: (i) accepting or requesting propane delivery or propane- related services; (ii) paying a Company invoice; or (iii) allowing Company-owned equipment to remain on your property for at least thirty (30) days. If you find these Terms and Conditions unacceptable, you may reject these Terms and Conditions by providing written notice to Company within thirty (30) days of your receipt of these Terms and Conditions. For the avoidance of doubt, these Terms and Conditions do not replace, amend, or eliminate the fixed propane pricing, exclusivity, term commitment, or volume contract commitment(s) in your existing Cylinder Exchange Agreement, Resale Cylinder Exchange Agreement or Commercial Cylinder Exchange Agreement (collectively, “Cylinder Exchange Agreement(s)”) with Company, if applicable.
2. SALES AND PURCHASE. Company will sell propane cylinders to Customer according to the surviving terms of your existing Cylinder Exchange Agreement, if any, and these Terms and Conditions (collectively, the “Agreement”). Customer will purchase 20lb propane gas cylinders filled with approximately 15lbs of propane from Company (“Cylinder(s)”) for the purpose of reselling such Cylinders on a new or exchange basis to Customer’s customers, or for Company’s own use, at the locations mutually agreed upon by Customer and Company (“Location(s)”). Customer authorizes Company to enter the Locations for the purposes set forth herein during the term of the Agreement. Company may choose not to deliver propane or perform services if, in its sole discretion, it believes that doing so will pose an unnecessary risk of injury or harm to you, our employees, or the public. You agree that we may lock off any equipment owned by Company at your locations, or suspend service if we believe an unsafe condition exists. If you smell propane or experience any adverse propane conditions or safety-related matters, you should immediately dial 9-1-1 and contact Company.
3. INSTALLATION AND TITLE TO EQUIPMENT. Customer acknowledges that the cages housing the Cylinders (“Cages”) as well as any non-permanent vehicle impact protection installed by Company are the sole property of Company. Company may enter Customer’s premises at any reasonable time to inspect, service or remove Company property. The Cages will be used only in connection with the cylinder exchange program with Company. Only filled Cylinders provided by Company or cylinders exchanged by customers will be stored in the Cages. Customer agrees to promptly surrender Company property to Company when the Agreement is terminated for any reason. Company is not responsible for restoring Customer’s premises to its previous condition after Cylinders are delivered or any Cages are installed, serviced or removed by Company, except to the extent of Company’ negligence. IN THE INTEREST OF SAFETY, CUSTOMER WILL NOT ALLOW ANYONE TO PERFORM ANY ADJUSTMENTS, ALTERATIONS, REPAIRS OR SERVICE TO THE CAGES OR CYLINDERS WITHOUT THE WRITTEN PERMISSION OF COMPANY.
4. CUSTOMER CYLINDERS AND SUPPLY. (a) Both parties understand that any and all customer cylinders will be accepted into the exchange program. Customer’s employees will not be responsible for inspecting such cylinders, other than promptly notifying Company of any apparent defects. Company will accept all customer cylinders for exchange at no additional charge to Customer, unless otherwise agreed upon by Company and Customer. (b) Company will make commercially reasonable efforts to pick up and deliver Cylinders in an effort to provide each Location with an adequate supply of filled Cylinders at any given time. All Cylinders will be thoroughly inspected and approved for retail sale and will be filled prior to being placed into the Cages.
5. TITLE; RISK OF LOSS. Title and risk of loss shall pass to Customer upon Company’ delivery of Cylinders to the Locations.
6. SERVICE CALLS. To the extent reasonably possible, Company will respond to calls for service within forty-eight (48) hours of a call from a Location indicating that they are in need of additional Cylinders, that exchanged cylinders should be removed, or that a Cage is in need of service.
7. LICENSES, PERMITS, AND OTHER EQUIPMENT. At Customer’s request, Company will arrange for and obtain: (a) any initial licenses, permits or government approvals required in connection with the use of the Locations for Cylinder exchange (but Customer is responsible for any renewals of such licenses, permits or government approvals), and (b) any impact protection, fire extinguishers, or other equipment required by law for the use of the Locations for Cylinder exchange.
8. CUSTOMER LOCATIONS. Customer will: (a) Keep the Cages locked unless Customer’s employee is present and an actual exchange or sale is occurring; (b) Prohibit its employees from accessing the Cages, or conducting an exchange or sale, without first viewing the Company training video and receiving training from Company personnel; (c) Be responsible for the compliance by its employees with all training provided by Company; and (d) Contact Company immediately if a leak is detected, if any defect or problem arises, or if training materials or leak detector solution is needed. In the event that Customer fails to comply with the obligations outlined in this paragraph, Customer will indemnify, defend and hold Company harmless for any claims, demands, or suits of any kind resulting from the failure of Customer to comply with the obligations outlined in this paragraph.
9. TERM. The initial term of this Agreement shall either be the length of the term identified in your existing Cylinder Exchange Agreement, if any, or, if no such agreement exists, one (1) year (collectively “Term”). The Term of the Terms and Conditions WILL AUTOMATICALLY RENEW FROM YEAR-TO-YEAR THEREAFTER except where prohibited by law (the “Renewal Term(s)”), unless either party provides the other party with at least sixty (60) days written notice of its intent not to renew the Terms and Conditions prior to the expiration of the Term or any Renewal Term. Customer may add or delete Locations with Company’ consent, which Company may withhold in its sole discretion. The Agreement will automatically and immediately terminate with respect to a Location if that Location ceases to operate for any reason.
10. TERMINATION OF SERVICE, PENALTY FOR EARLY TERMINATION.
A. Termination and Suspension of Service. Company may suspend or terminate your service immediately and without prior notice if you fail to satisfy any material provision contained in these Terms and Conditions, including but not limited to making timely payments. Company reserves the right to terminate service or suspend deliveries if Company determines, in its sole discretion, that a condition exists that poses a health or safety threat to its employees, you or the public. Additionally, Company may terminate the Agreement at any time for any reason upon thirty (30) days’ prior notice to Customer. New Jersey customers will be notified at least seven business days prior to the discontinuation of propane deliveries due to non-payment of bills.
B. Early Termination Fees. If Customer terminates the Agreement for any reason other than as provided for in Section 10 before the expiration of the Term or any Renewal Term(s), for any or all Locations, Company may recover from Customer its lost profits that it was projected to receive had Customer not terminated prior to the end of the Term or Renewal Term, service and labor charges associated with the removal of Company property, and other damages caused by the early termination.
THE SERVICE AND LABOR CHARGES ASSOCIATED WITH REMOVAL OF COMPANY PROPERTY DUE TO EARLY TERMINATION FEES LISTED IN THIS SECTION 5 ARE NOT APPLICABLE TO NEVADA CUSTOMERS.
11. PRICING, FEES, RATES, AND CHARGES.
A. Price. You agree to pay Company’s price for exchanged or spare Cylinders in effect when you place an order, or the price included in your existing Cylinder Exchange Agreement, if applicable. This price is set at Company’s discretion, and includes, among other things, taxes, our costs to procure the propane and other materials, freight and transportation. Your price may vary depending on upon a variety of factors, such as changing commodity and transportation costs, your volume of propane purchased, customer classification and competitive conditions. We encourage you to contact our office to discuss which pricing options may be best for your needs, as prices change frequently and without notice. The price Customer charges to its customers for the exchange or sale of Cylinders will be at Customer’s sole discretion.
12. PAYMENT TERMS AND LATE FEES. If you have received credit terms from Company, you will be billed after propane is delivered or services are rendered. You agree to pay the invoiced amount within thirty (30) days of receipt of the invoice. If you dispute an invoice, you must contact your local office within thirty (30) days of receipt. COMPANY DOES NOT ACCEPT CASH OR CASH ON DELIVERY. If you fail to timely pay all amounts owed to Company, Company may, unless prohibited by law, add a monthly late charge of 1.5% of the average daily balance until paid or a late charge of $36.00, whichever is greater. If you fail to make a payment on your outstanding amount owed, Company may, after providing written notice to you, suspend service. Company may at any time require you to pay for propane deliveries or services in advance, to post a cash deposit, or to provide other forms of credit enhancement. Company may apply any amounts it holds from you, whether a security deposit or otherwise, at any time in whole or in part against the outstanding balance. If Company uses a collection agency or attorney to collect money owed by you that is past due, you agree to pay the reasonable costs of collection incurred by Company, including, but not limited to, collection agency fees, reasonable attorneys’ fees, and arbitration or court costs. Maryland Customers: If all of the outstanding amount owed is not received within 15 days after it is due, you will pay a late charge of the greater of $5.00 per month or 10% per month for the part of the outstanding amount that is late for no more than three months, or you will pay up to 1.5% per month of the payment amount that is past due.
13. INDEMNIFICATION. Each party (as the “indemnifying party”) shall indemnify and hold the other party and its employees (as the “indemnified party”) harmless from and against any and all loss, damage, liability or claims (including, without limitation, costs and expense of litigation and reasonable attorneys’ fees) (collectively, “Claims”) arising from, or connected with, the indemnifying party’s negligence, willful misconduct or breach of the Agreement and in each case except to the extent such Claims are due to the indemnified party’s negligence, willful misconduct or breach of the Agreement.
14. INSURANCE. Unless otherwise agreed upon, Company and Customer each shall maintain at their sole cost and expense General Liability insurance for injury to person and damage to property in an amount not less than Two and a Half Million Dollars ($2,500,000) for each occurrence. Such insurance shall be issued by insurance carriers with an AM Best Rating of VI or better and licensed to do business in the state where those services are being performed. Customer shall provide Company with a Certificate of Insurance reflecting the insurance coverage required herein, and stating that Company shall be provided with thirty (30) days written notice prior to cancellation of such coverage.
15. LIMITED WARRANTIES. Company warrants that it has good and sufficient title to the goods sold hereunder, and that the propane delivered in the Cylinders will meet nationally recognized specifications for commercial grade propane. COMPANY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPANE, CAGES, CYLINDERS, EQUIPMENT OR SERVICE SUPPLIED OR PERFORMED UNDER THE AGREEMENT INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR LIABILITY FOUNDED IN SECTION 402(A) OF THE RESTATEMENT OF TORTS OR OTHERWISE.
16. LIMITATION OF LIABILITY. CUSTOMER WAIVES THE RIGHT TO ASSERT A CLAIM AGAINST COMPANY MORE THAN TWELVE (12) MONTHS AFTER THE FIRST EVENT OR FACT THAT GIVES RISE TO THE CLAIM. UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOST PROFITS AND BUSINESS INTERRUPTION DAMAGES. THIS LIMITATION WILL APPLY REGARDLESS OF WHETHER A CLAIM IS MADE OR A REMEDY IS SOUGHT UNDER CONTRACT, TORT, PRODUCT LIABILITY, OR OTHERWISE. ADDITIONALLY, COMPANY’S LIABILITY HEREUNDER FOR ANY CLAIMS SHALL NOT, UNDER ANY CIRCUMSTANCES, EXCEED THE REVENUE RECEIVED BY COMPANY UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE ACTUAL CLAIM, UNLESS THE CLAIMED DAMAGES ARE CAUSED BY THE GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF COMPANY. COMPANY IS NOT LIABLE FOR ANY LOSS SUSTAINED BY CUSTOMER AS A RESULT OF THE EXHAUSTION OF CUSTOMER’S SUPPLY OF CYLINDERS OR PROPANE.
17. EXCUSED PERFORMANCE. Company will not be responsible for any delay or damages caused by event or circumstances beyond its reasonable control, including without limitation acts of God, fire, storms, floods, labor disputes, wars hostilities, epidemic, pandemic, compliance with laws or regulations, Company’ inability to obtain propane or equipment from its customary suppliers, terminal, refinery or pipeline disruptions, allocation programs lack of or inadequate transportation facilities. Under any of these circumstances, Company may allocate propane and equipment among its customers in any manner that Company in its sole judgment deems reasonable and Customer shall not hold Company responsible in any matter for any losses or damages which Customer may claim as a result of such allocation by Company.
18. CLAIMS AND ARBITRATION.
A. Arbitration Agreement. Upon the election of either party (or any other entity or individual with the right to invoke arbitration under this provision, including without limitation those entities or individuals named in this Section 18(A)(2), a Dispute shall be resolved by binding arbitration. “Dispute” means any claim or controversy arising from or relating to these Terms and Conditions, your agreement with Company, or the relationship between you and Company, including without limitation any and all: (1) claims for relief or theories of liability, whether based in contract, tort, statute or otherwise; (2) claims against Company or its parents, subsidiaries, affiliates, predecessors, successors or assigns and any of their directors, officers, employees and agents (any of whom may elect arbitration of claims to which they are a party pursuant to these Terms and Conditions); (3) claims that arose before this Arbitration Agreement; (4) claims that arise after the expiration or termination of this Arbitration Agreement; and (5) claims that are the subject of a purported class action or other representative or collective action. “Dispute” shall not, however, include claims filed by you or Company on an individual basis in small claims court if the amount claimed is within the jurisdiction of that court.
B. Right to Reject this Arbitration Agreement. Notwithstanding anything in this Arbitration Agreement to the contrary, you may reject this Arbitration Agreement. To do so, you must send Company written notice by mail postmarked no later than thirty (30) days after your first receipt of notice of this Arbitration Agreement to Box 965, Valley Forge, PA 19482, Attn: General Counsel. Your rejection notice must be signed, must state that you reject this Arbitration Agreement, and must include your name, address, and Company account number. Your decision will not adversely affect your relationship with or receipt of goods or services from Company.
C. Procedures for Arbitration. This Arbitration Agreement is governed by the Federal Arbitration Act. Arbitrations shall be conducted by a single arbitrator and administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules (collectively the “AAA Rules”) in effect when notice of a Dispute is given. If your claim is less than $10,000, you may choose whether the arbitration will be decided on the papers or after a telephonic or in person hearing. At your election, arbitration hearings will take place in the federal judicial district of your residence.
D. Right to Attorneys’ Fees and Costs. You may hire an attorney to represent you. You are responsible for your attorneys’ fees and costs. You may recover them from the Company to the same extent as in court. You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in court. The Company will be responsible for any additional arbitration fees.
E. Waiver of Jury Trials and Class Actions. IN ARBITRATION, DISPUTES ARE RESOLVED BY AN ARBITRATOR RATHER THAN A JUDGE OR JURY. BY THIS ARBITRATION AGREEMENT, YOU AND COMPANY WAIVE THE RIGHT TO PROSECUTE OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, OR OTHER REPRESENTATIVE ACTION. UNLESS YOU AND COMPANY AGREE OTHERWISE IN WRITING, THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION OR COLLECTIVE BASIS, AND NEITHER THE ARBITRATOR NOR THE JUDGE MAY CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF TO THAT INDIVIDUAL PARTY. THIS CLASS AND COLLECTIVE ACTION WAIVER IS A MATERIAL AND ESSENTIAL PART OF AND CANNOT BE SEVERED FROM THIS ARBITRATION AGREEMENT.
19. ENTIRE AGREEMENT. These Terms and Conditions are intended to supersede any and all existing agreements between the parties as to the matters contemplated herein, except for any fixed propane pricing, exclusivity, term commitment, or volume contract commitment(s) in your existing Cylinder Exchange Agreement with Company, if applicable (which terms shall remain effective, and these Terms and Conditions shall be supplementary thereto). Except for the surviving terms in your existing Cylinder Exchange Agreement with Company, if any, no other agreement exists between the parties whether oral, written or implied. In the event of a conflict between your existing Cylinder Exchange Agreement and these Terms and Conditions, the provisions of these Terms and Conditions shall prevail, except for any fixed propane pricing, exclusivity, term commitment, or volume contract commitment(s) in your existing Cylinder Exchange Agreement with Company, if applicable (which terms shall prevail against the terms of these Terms and Conditions).
20. GOVERNING LAW. The Agreement shall be interpreted, construed and enforced in accordance with the laws of the Commonwealth of Pennsylvania. The language of the Agreement shall in all cases be construed as a whole according to its fair meaning and shall not be strictly construed for or against either party.
21. NO WAIVER; SEVERABILITY. No delay on the part of either party in exercising any of its rights hereunder shall prevent the exercise of such rights at a later date, and any waiver of any breach of the Agreement by either party shall not be deemed a waiver of any other or subsequent breach thereof. Should any section or clause of the Agreement be held invalid by a court of competent jurisdiction, it is agreed that the balance of the Agreement shall continue in full legal force and effect.
22. NOTICE. Any notice by you shall be sent by U.S. mail, postage prepaid, to Company at Box 965, Valley Forge, PA 19482, Attn: Customer Service. Notice to you may be in the form of a bill insert, stand-alone mailing, email or other written notification.
23. CUSTOMER’S CONSENT TO BEING CONTACTED. By providing a telephone number or email address, now or in the future, Customer agrees that Company (and others on its behalf) may contact Customer at that email address by emailing it or at Customer’s telephone number via text message (whether manually or automatically dialed) and telephone call (whether manually or automatically dialed, and whether using a live, artificial, or prerecorded voice) regardless of whether Customer will incur charges. Customer further agrees that such communications may include, without limitation, delivery reminders, delivery confirmations, past-due account notices, account notifications, and attempts to collect any debts from Customer. CUSTOMER ACKNOWLEDGES AND AGREES THAT CUSTOMER’S CONSENT TO SUCH COMMUNICATIONS IS A MATERIAL AND ESSENTIAL PART OF THESE TERMS AND CONDITIONS AND THAT CUSTOMER PROVIDED IT AS PART OF A BARGAINED-FOR EXCHANGE.
24. CHANGES TO THE TERMS AND CONDITIONS. Company reserves the right to amend or add to this Agreement (other than price per cylinder, fees, rates, and charges, which may be changed without prior notice) at any time by giving Customer prior written notice of the change(s). The notice may be in the form of a bill insert, email, or other written notification.
25. SURVIVAL. Paragraphs 1, 3, 5, 6, 12, 13, 15, 16, 17, 18, 19, 20, 23, 24 shall survive the termination or expiration of this Agreement, which includes your permission for Company to contact you to collect any debts owed or your return of Company property.
These Cylinder Exchange Terms and Conditions shall apply to cylinder exchange customers in all states except where specifically prohibited by law.