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Agreement to Sell and Buy Energy:
ELECTRICITY AND NATURAL GAS
TERMS OF SERVICE
This is an agreement between Energy Plus Holdings LLC (“EPH”) and you, the customer (“you” or “Customer”) for the sale and purchase of electricity and/or between Energy Plus Natural Gas LLC (“EPNG”) and you for the sale and purchase of natural gas (“Agreement”). EPH and EPNG may be collectively or individually referred to as “Energy Plus®
” or “EP.” Generally, the words “you” and “your” refer to the Customer and “we” and “us” refer to EP, unless clearly stated otherwise. EPH agrees to sell and you agree to purchase all of your electric requirements for the account(s) listed in your Welcome Confirmation (your welcome letter or email). EPNG agrees to sell and you agree to purchase all of your natural gas requirements for the account(s) listed in your Welcome Confirmation (your welcome letter or email).You agree to appoint EP as your agent to acquire the necessary supplies to meet your electricity and natural gas needs as required by your local distribution company (“LDC”). This Agreement is for electric and natural gas service only. Your LDC, and not EP, will continue to be solely responsible for the delivery of electricity and natural gas to your locations through its transmission and distribution facilities. EP’s rates are not regulated by the Maryland Public Service Commission.
- You will receive a promotional supply rate for your first three (3) billing cycles. The promotional supply rate for electricity is stated in your Welcome Confirmation and will remain at that rate for all three (3) billing cycles. This promotional supply rate is only valid for customers who are not currently, and have not previously been, enrolled in service with EP. After the first three (3) billing cycles, this promotional supply rate will automatically convert to a monthly variable supply rate. Thereafter the monthly variable supply rate is subject to change each billing cycle based on many different factors, including our cost to purchase electricity, capacity, congestion, settlement, ancillaries, related transmission and distribution charges and other market-related factors; plus all applicable taxes, fees, charges, costs, expenses and margins. The promotional and variable supply rates may be higher than your EDC's supply rate. EP does not guarantee any savings over the EDC's rates for the entire term of this Agreement. The promotional supply rate and variable supply rate do not include EDC charges, including, but not limited to, EDC delivery and distribution charges, which are separate amounts that you must pay your EDC. If you selected the Energy Plus Green Option, your rate includes an additional charge of approximately $0.01 per kWh for the purchasing of Renewable Energy Certificates. While in the variable rate period, the incremental rate for the Green Option may change. Current and historical rates should not be taken as a guarantee of future rates. You may obtain rate information by calling EP at 1-877-580-3915.
For Natural Gas
- You will receive a promotional supply rate for your first three (3) billing cycles. The promotional supply rate for natural gas is stated in your Welcome Confirmation and will remain at that rate for all three (3) billing cycles. This promotional supply rate is only valid for customers who are not currently, and have not previously been, enrolled in service with EP. After the first three (3) billing cycles, this promotional supply rate will automatically convert to a monthly variable supply rate. The monthly variable supply rate is subject to change each billing cycle based on many different factors, including our cost to purchase natural gas, capacity, storage, nominating balancing, transportation to the Delivery Point, and agency services; plus all applicable taxes, fees, charges, costs, expenses, and margins. The promotional supply rate and the variable supply rate may be higher than your NGDU's rate. EP does not guarantee any savings over the NGDU's rates for the entire term of this Agreement. The promotional supply rate and the variable supply rate do not include the NGDU charges, which are separate amounts that you must pay to your NGDU. You may obtain rate information by calling EP at 1-877-580-3915.
Right to Rescind:
You have the right to rescind this Agreement without penalty until midnight of the third business day after your receipt of your Welcome Confirmation by contacting EP at the telephone number or email address listed below (“Rescission Period”). Any cancellation after midnight of the third business day shall be subject to the Term and Renewal provisions outlined below.
Term and Renewal:
This Agreement shall be binding as of the date that your enrollment is accepted by EP, which shall not be before the expiration of your Rescission Period as stated above (“Enrollment Acceptance”). The initial term of this Agreement is estimated at one month and shall cover the period from Enrollment Acceptance through your first billing cycle with EP as your electric and natural gas supplier (“Initial Term”). Upon completion of the Initial Term, this Agreement shall automatically renew on a month-to-month basis under the same terms (“Renewal Term”), until your LDC switches your account(s) to its basic/default service (“basic service”) or to another supplier after this Agreement is cancelled. If your LDC terminates your service, this Agreement will be automatically cancelled. You may cancel this Agreement at any time without paying a cancellation fee. Cancellation is effective on the next meter read date that occurs after your LDC has switched your account from EP. You must provide at least thirty (30) days’ advance written notice before the next regularly scheduled meter read in order for the cancellation to be effective as of that reading. If you cancel this Agreement prior to the end of your second billing cycle, you may forfeit some of the rewards described in your Welcome Confirmation. EP reserves the right to cancel this Agreement, in whole or with respect to any particular account(s) covered by this Agreement for any reason, with forty-five (45) days’ advance written notice to you. Cancellation is effective upon the date as deemed effective by the LDC, after any applicable notice period, and you will be responsible for unpaid balances as of the cancellation date, until your account is paid in full, but we will not assess a cancellation fee.
Customer Information Release Authorization:
Billing: For Electric
- You will receive one consolidated bill from your LDC each billing cycle for the electric service provided by EPH and the transmission, distribution and other services provided by your LDC, plus all applicable taxes. For Natural Gas
- You will receive one consolidated bill from your LDC each billing cycle for the natural gas supply service provided by EPNG and the distribution and other services provided by your LDC, plus all applicable taxes. For both electric and gas, you agree to remit payment for all of these services directly to your LDC(s) in accordance with the payment terms stated in your LDC's tariffs. Past-due charges may incur late fees as set forth in your LDC’s tariffs. In the event your LDC charges EP for services related to your account(s), EP reserves the right to bill you for these charges. Information regarding estimated bills and any payment programs, including deferred payments will be provided by your LDC(s). Customer agrees to timely review its invoice(s) and agrees that subject to applicable tariff and law, unless notice is given to EP within ninety (90) days of the invoice date(s), all invoiced amounts shall be deemed to be correct and Customer shall waive any right to dispute amounts set forth on such invoice(s).
Title and Taxes:
Title to, control of, and risk of loss of the electricity and natural gas sold under this Agreement will pass from EP to Customer when it is delivered to Customer’s LDC(s). Each party will indemnify and hold the other party harmless from any and all claims (including claims for personal injury, death, or property damage), losses, fees, taxes, damages, suits, causes of action and judgments of any kind arising hereunder while title and risk of loss are vested in the indemnifying party. You will be responsible for the payment of all transfer, sales or other taxes related to EP's service(s) under this Agreement. If you are exempt from any such taxes, you are responsible for identifying and requesting such exemption from the collection of taxes by filing appropriate documentation with EP and/or your LDC(s), as applicable.
Limitation of Liability:
EPH's aggregate liability arising out of or related to this Agreement shall not exceed the amount of your largest monthly invoice for electric service during the twelve (12) months immediately preceding cancellation of this Agreement. EPNG's aggregate liability arising out of or related to this Agreement shall not exceed the amount of your largest monthly invoice for natural gas supply service during the twelve (12) months immediately preceding cancellation of this Agreement. The Parties agree to the extent permitted by law that the statute of limitations with respect to all claims arising out of or related to this Agreement shall be reduced to the lesser
of (x) two years from the event giving rise to the claim or (y) the minimum period permitted by law and any action not brought within such time period shall be barred without regard to any other limitations period. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT WHEN A REMEDY OR MEASURE OF DAMAGES IS EXPRESSLY HEREIN PROVIDED, EP’S LIABILITY SHALL BE LIMITED TO ONLY THE DIRECT ACTUAL DAMAGES AND SUCH DIRECT ACTUAL DAMAGES SHALL BE THE SOLE AND EXCLUSIVE REMEDY AND ALL OTHER REMEDIES OR DAMAGES AT LAW OR IN EQUITY ARE WAIVED INCLUDING, BUT NOT LIMITED TO, ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, LOST PROFITS, BY STATUTE, IN TORT OR CONTRACT, UNDER ANY INDEMNITY PROVISION OR OTHERWISE. IT IS THE INTENT OF THE PARTIES THAT THE LIMITATIONS HEREIN IMPOSED ON REMEDIES AND THE MEASURE OF DAMAGES BE WITHOUT REGARD TO THE CAUSE OR CAUSES RELATED THERETO, INCLUDING THE NEGLIGENCE OF ANY PARTY, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT OR CONCURRENT, OR ACTIVE OR PASSIVE. TO THE EXTENT ANY DAMAGES REQUIRED TO BE PAID HEREUNDER ARE LIQUIDATED, THE PARTIES ACKNOWLEDGE THAT THE DAMAGES ARE DIFFICULT OR IMPOSSIBLE TO DETERMINE, OTHERWISE OBTAINING AN ADEQUATE REMEDY IS INCONVENIENT AND THE LIQUIDATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE HARM OR LOSS.
Binding Effects; Assignment:
This Agreement shall extend to and be binding upon EP’s respective permitted successors and permitted assigns. Customer may not assign this Agreement without EP’s prior written consent and any attempted assignment shall be void. EP may sell, transfer, pledge, encumber or assign the accounts receivable and revenues derived from this Agreement (or any proceeds thereof) in connection with any financing agreement, purchase of receivables program or other billing services arrangement. In addition, EP may assign the rights and obligations hereunder consistent with applicable law.
If you have questions about your bill or service, you may contact EP (see EP Contact Information below). If you are not satisfied with the response from EP’s Customer Care representative, you may ask that your questions be referred to an EP supervisor, who will respond promptly. If you remain unsatisfied with our attempts to resolve the issue, you may seek assistance from the Maryland Public Service Commission ("PSC") or request information from the PSC regarding your consumer protection rights. The PSC’s contact information is listed below.
This Agreement and the Welcome Confirmation are, together, the entire agreement between the parties with regard to the subject matter hereof and supersedes all prior agreements, either written or oral. Nothing in this Agreement shall create or be construed as creating any express or implied rights in any person or entity other than you and EP. This Agreement is subject to all valid and applicable legislation and to all present and future orders, rules and regulations of authorities having jurisdiction over the subject matter hereof. You acknowledge that this Agreement is a forward contract within the meaning of the United States Bankruptcy Code and that EP is a forward contract merchant. This Agreement is made and shall be construed in accordance with the laws of the State of Maryland. There are no third party beneficiaries to this Agreement.
EP will use commercially reasonable efforts to provide the service contemplated herein, but EP does not guarantee a continuous supply of electricity or natural gas. Certain Force Majeure events outside of EP’s control may cause interruptions in service. If a Force Majeure event prevents EP from performing its obligations in whole or in part, EP’s performance shall be excused for the duration of such event, and EP will not be liable for damages associated with any delay or failure to perform as a result thereof. "Force Majeure" shall include, without limitation, acts outside of EP’s control, sabotage, riots or civil disturbances, acts of God, acts of the public enemy, acts of vandalism, terrorist acts, natural disasters, explosions, fires, or similarly cataclysmic occurrence, failure, shortage or unavailability of generating units or transmission facilities, nonperformance by the LDC, or any change in law or any other action by a governmental authority that materially impairs EP’s ability to perform its obligations under this Agreement. EP will give you reasonably prompt and detailed notice of any Force Majeure occurrence.
Each provision of this Agreement is made subject to the maximum extent permitted by law and if any of the provisions, or portions or applications hereof are held to be unenforceable or invalid by any court of competent jurisdiction, EP and Customer shall negotiate an equitable adjustment to or amendment of the affected provisions with a view toward effecting the purpose of this Agreement, and the validity and enforceability of the remaining provisions, or portions or applications hereof or thereof, shall not be affected thereby.
Application of the UCC:
THE PARTIES AGREE THAT TO THE MAXIMUM EXTENT POSSIBLE UNDER LAW, ARTICLE 2 OF THE UNIFORM COMMERCIAL CODE SHALL APPLY TO ENERGY SOLD HEREUNDER AND IF ANY TOPIC OR MATTER ADDRESSED HEREIN IS ALSO ADDRESSED IN SUCH ARTICLE 2, THEN THIS AGREEMENT SHALL CONTROL AS TO SUCH TOPIC OR MATTER. CUSTOMER HEREBY WAIVES ANY RIGHTS IT MAY HAVE PURSUANT TO SECTION 2-609 OF THE UCC, OR ANY OTHER SIMILAR DOCTRINE UNDER LAW OR STATUTE WHEREBY CUSTOMER MAY DEMAND ADEQUATE ASSURANCE OF PERFORMANCE FROM EP.
EP MAKES NO REPRESENTATIONS OR WARRANTIES AND EP EXPRESSLY DISCLAIMS AND NEGATES ALL REPRESENTATIONS AND WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR FUTURE SAVINGS.
WAIVER OF JURY TRIAL: TO THE FULLEST EXTENT PERMITTED BY LAW,
ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING CLAIMS ARISING IN CONTRACT, TORT, STATUTORY OR OTHERWISE, SHALL BE SETTLED EXCLUSIVELY AND FINALLY BY ARBITRATION IN ACCORDANCE WITH THE RULES AND PROCEDURES OF THE AMERICAN ARBITRATION ASSOCIATION. ANY ARBITRATION PROCEEDING HEREUNDER SHALL BE CONDUCTED EXCLUSIVELY IN ANNAPOLIS, MARYLAND. NEITHER PARTY MAY ALTER, AMEND, OR OTHERWISE CHANGE THE BINDING OBLIGATION TO ARBITRATE DISPUTES SET FORTH IN THIS PROVISION WITHOUT THE EXPRESS CONSENT OF THE OTHER PARTY, PROVIDED HOWEVER, EP MAY CHANGE THE TIME, PLACE, MANNER, PROCESS OR PROCEDURE OF THE BINDING OBLIGATION TO ARBITRATE IN COMPLIANCE WITH THE FOLLOWING SECTION.
If, at any time after receipt of your Welcome Confirmation, EP changes the material terms of this Agreement, you will be notified of such changes and you will be provided a copy of or website link to access the updated terms. Such updated Agreement will become effective thirty (30) days after the date such notification is sent with respect to all periods after the date you are notified of such updated Agreement, provided however, in no event shall EP be permitted to change the waiver of jury trial provision contained herein with respect to Customer or EP and, Customer’s continued receipt of service from EP after such change, shall be deemed to be an acknowledgement of such updated Agreement. For the avoidance of doubt, in no event shall any such updated version of the Agreement change, alter, amend or otherwise be construed to mean that the mandatory nature of the waiver of jury trial provision contained herein is changed.
Cancellation of Existing Service:
You are responsible for canceling any agreements with other supplier(s) from whom you are purchasing electric and/or natural gas service as of the date of this Agreement.
ENERGY PLUS CONTACT INFORMATION:
LDC CONTACT INFORMATION - In the event of a power outage/gas leak or other emergency, a problem with your electric/gas meter or any other service need, please contact your LDC at the following number:
1-877-778-2222 (for electric) and 1-800-685-0123 (for natural gas)
1-703-750-1400 or 1-800-752-7520
PSC CONTACT INFORMATION:
Public Service Commission
Wm Donald Schaefer Tower
6 St. Paul St
Baltimore, MD 21202-6806
Maryland Electric License Number: IR-1805
Maryland Gas License Number: IR-2216