"New Wave Energy Corporation", "NWEC", "Supplier" means New Wave Energy Corporation and refers to the retail energy provider supplying you "Customer," with energy services as outlined in the below Customer Terms and Conditions and as addressed in this Energy Supply Services Agreement "Agreement". Herein, Supplier and Customer may be individually referred to as "Party" or collectively as "Parties".
Purchase and Sale of Services- This is a full requirements agreement. Upon offer and acceptance of the terms and services in this Energy Supply Services Agreement, Supplier hereby agrees to purchase and to sell electricity and/or natural gas to Customer, and Customer agrees to purchase and receive the quantity of electricity and/or natural gas at the rate and for the term set forth and indicated herein.
Supply Price- Electricity: Customer shall pay Supplier for the electric energy purchased at the energy supply rate, as specified on page one (1) of this Agreement. All rates supplied to Customer, will be supplied to Customer by Supplier plus (+) (i) all applicable Taxes, (ii) all other amounts related to the purchase and delivery of electric energy to the Delivery Point(s), (iii) all Pass-Through Charges, (iv) Supplier margin and (v) Capacity. The rate is a composition of the cost elements to serve Customer Accounts as specified by this Agreement. If fixed price, the price shall be stated on the first page of this Agreement. The fixed adder price does not include Taxes or regulated charges from the Utility including, but not limited to, T&D Charges, customer account fees, or other utility transition charges. Natural Gas: In lieu of a variable price Customer’s price shall be NYMEX monthly contract settlement price, plus (+) transport fees, per ccf plus (+) the fixed adder listed on the first page of this agreement. If fixed price, the price shall be stated on the first page of this agreement. In the event that an extreme Market condition ("event") exists or arises during the Term of this Agreement and this event is not covered within the stated Terms and Conditions of this Agreement, and this event forces fixed components, energy rates and applicable energy components to rise above quoted or normal costs to deliver the energy to the Customer's Utility designated Delivery Point(s), such account(s) will be billed according to an applicable index rate plus (+) a pass through of all applicable delivery components including, but not limited to energy, capacity, congestion, ancillary services and ISO administrative cost Renewable Portfolio Standard, and losses plus (+) a fixed adder rate of $0.006 / kWh or $0.03/ccf.
Adjustments- In the event that the Market, Grid Operator, Pipeline, Utility or EDC: (i) implements a mandatory service for suppliers; (ii) changes transmission or capacity charges; (iii) increases Supplier's collateral requirements due to market movement; or (iv) adopts any other changes in its collateral or tariff requirements, or changes in Customer's capacity and/or transmission obligations, and such occurrence results in a material change in costs (upward or downward) to NWEC in providing service to Customer, NWEC may adjust the Contract Price (upward or downward, as appropriate) to Customer to reflect Customer's proportional share of such material change, market adjustments or increases, increases in credit or collateral requirements, or any other increase in costs. Customer acknowledges that the Contract Price agreed upon may be adjusted from time to time in accordance with this provision, agrees to be responsible for such revised level of the Contract Price.
Term- The effective term of this Agreement shall commence with the date as indicated by this Agreement, or such date thereafter as service is authorized by Customer's Utility(ies), and shall continue until terminated by the effective end date or by the Supplier at its sole discretion. The switch from the Utility to Supplier may take up to two (2) full billing cycles to complete. Upon completion of the Initial Term, this Agreement will automatically renew at the same terms and conditions. Customer shall have three (3) business days from receipt of the first billing statement of Customer's Renewal Term to reject renewal terms and cancel renewal agreement. The Renewal Rate will be a monthly market rate as reasonably determined by Supplier. Supplier shall have the right to match any bonafide competing offer at the end of the Initial Term or any Renewal Term.
Customer Billing Acknowledgement- Billing options are at the sole discretion of the Supplier. In most cases the Customer will still receive one convenient bill from the Utility. In some cases the Customer will receive a separate invoice from the Supplier. Ultimately the Customer shall have the responsibility to make the request to the Supplier as to what billing method best suits their needs. Customer acknowledges that the Supplier’s ability to bill Customer is exclusively dependent on the Utility’s or Independent Systems Operator’s (ISO’s) ability to accommodate Supplier with all necessary information, including meter readings, in the case of scaler meters and recorded data in the instance of IDR meters. Should the absence of such information from the Utility or ISO exist, Supplier may bill Customer on estimated meter readings. Customer’s bill will be adjusted the following month, or on the next bill after Supplier receives Actual consumption data from the Utility or ISO, to reconcile any disputes, differences, or discrepancies between estimated consumption and Actual consumption.
Billing and Payments- If Customer is enrolled in the consolidated billing option, Customer will still receive one (1) bill from the Utility with Supplier’s charges included and payment will be due in accordance with Customer’s normal billing cycle as determined by their respective Utility. Otherwise, Customer will receive an invoice from Supplier following its meter read date or meter read estimate for services provided under this Agreement. Payment in full is due fifteen (15) days from the date of such an invoice. Customer shall make payments to the address set forth on the applicable executed Energy Supply Services Agreement. Late and overdue payments shall be subject to a late payment fee which will be assessed at the lesser of: (i) a first time late payment penalty is not to exceed fifteen percent (15%) of the balance of the total delinquent bill; or (ii) the maximum amount allowed by law. Customer will be charged twenty ($20) dollars for returned payments. If Customer fails to pay any amount when due, Customer will be responsible for all of Supplier’s reasonable costs of collection, including any and all attorneys fees. If the Parties agree to a billing date, such a date shall be subject to change in the event the Utility performs or implements a meter reading cycle in conflict with agreed upon billing/switch over date. Failure by Customer to make payment, in accordance to this provision, constitutes a breach of this Agreement and Supplier may terminate this Agreement and collect all, and any past due amounts.
Credit- If at any time, Customer does not meet NWEC’s commercially reasonable creditworthiness standards, NWEC may require Customer to provide performance assurance in a form and amount reasonably acceptable to NWEC such as a letter of credit, third-party guarantee, deposit or prepayment. If Customer fails to provide such assurance within five (5) business days after notice from NWEC, then NWEC shall have no obligation to supply Customer with Power or Natural Gas and may suspend deliveries, terminate this agreement and all associated transactions, and liquidate any commodity purchased for delivery to Customer during future periods.
Customer’s Right to Rescission- If the Customer named herein is receiving residential service, the Customer has the right to rescind this Agreement without penalty within three (3) days after the effective, executed signature date with all of its Terms and Conditions, is executed and received. Following the expiration of three (3) days, if the Customer should choose to terminate the Agreement, before the expiration of the Term, the Customer will be subject to the penalties described within the “Early Termination of Service” provision. Non-residential customers have no right to receind this Agreement without penalty.
Assignment- Customer may assign this Agreement to a third party only with Supplier’s prior, written consent. Supplier may assign this Agreement, accounts, revenues, and proceeds, or grant a lien against them to credit providers and to a third party without Customer’s prior written consent. Supplier may also assign its rights and responsibilities under this Agreement to certain backup service providers under Agreement to perform services such as invoicing and power scheduling (“Service Partners”). Customer's assignment shall be limited to an entity controlled by, controlling, or under common control with Customer and the Agreement shall remain valid.Account Adds/Drops- Customer may decide to add or drop one (1) or more qualified accounts throughout the life of this Agreement with respect to leasing, selling, or purchasing metered space. In the case of a drop in service due to a sale or lease of contracted metered space to another party, Customer shall provide New Wave Energy with a letter from the utility, lease agreement, or another form of documentation approved by New Wave Energy proving the reason for drop in service. When Customer chooses to add a new account to the agreement due to a purchase, sale, or lease of new metered space the Customer shall provide New Wave Energy with a letter from the utility, lease agreement, or another form of documentation approved by New Wave Energy proving the reason for adding new service. If Customer decides to drop one or more accounts from this Agreement without providing approved documentation, Customer will be liable to Supplier for an Account Drop Fee for each account dropped. The Account Drop Fee will be calculated in the same way as the corresponding Early Termination Fee and prorated according to the usage applicable to the Account(s) dropped.
Onsite Generation & Energy Allocations- If, after the date the Customer signed this Agreement, the Customer installs or intends to install onsite generation units (such as solar panels, or wind turbine, etc); or engages in filing for or receiving discounted replacement energy; receives or engages in filing for a NYPA allocation; or receives any other form of allocated energy not within scope of this Agreement, will constitute a Material Change and an Event of Default, and at Supplier's discretion, either (i) the Rate associated with this Agreement may be reassessed and delivered to Customer using the Supplier's internal calculations; or (ii) termination of this Agreement will be processed and the Customer will be returned back to their Utility(ies) Company(ies).
Notices- All notices and similar correspondences will be in writing and delivered to Customer and Supplier. The written Notices can be delivered via U.S. Mail, courier, Electronic Mail, Text Message, or Facsimile. Notices will be effective upon receipt by the person to whom it is addressed. Notices can also be sent to update, change, or otherwise alter the Terms & Conditions as presented herein.
Cost Savings Analyses- In most cases this Agreement will be accompanied with a Cost Savings Analysis/Analyses. Cost Savings Analyses are a projection of hypothetical savings and in no way constitute or guarantee the savings reflected on the individual Cost Savings Analysis. Cost Savings Analyses are calculated based upon past usage data authorized by the Customer for the Supplier to retrieve, orally or written, obtained from the Utility and authorized by the Customer, or by a Utility bill provided by the Customer, and future energy market projections or by rate hikes enforced by the Utility or the threat thereof.
Limitations of Liability- Liability for damages not excused by reason of force majeure or otherwise shall be limited to direct actual damages. Neither Party will be liable to the other for consequential, incidental, punitive, exemplary or indirect damages, including lost profit or penalties of any nature which are hereby waived, whether or not there was actual knowledge of such possible damages, or if such damages could have been reasonably foreseen. The limitations apply without regard to the cause or responsibility of any liability or damage.
Bid Provision- If this Agreement is attended, offered during, or is a response to a bid, Request for Proposal, or other evaluative process then Supplier has the right to adjust this Agreement and rate offering subject to the actual execution date of said Agreement. Supplier reserves the right to reject this Agreement if the rate offering is no longer valid for the date and time in which it is executed. Rates are subject to a refresh due to market volatility.
Indemnity- Customer assumes responsibility for the electric and/or natural gas service provided hereunder after it leaves the Utility’s lines at the Delivery Zone(s), as well as for the wires, apparatus, and appurtenances used in connection there with whether located at or beyond the Delivery Point. Each active Party shall indemnify, protect, defend and hold harmless the other Party from and against any losses, claims, damages, liabilities, costs or expenses arising from or out of any circumstance, event, incident or action during the length agreed upon and executed herein.
Governing Law- This Agreement and the rights and duties of both parties shall be governed by the laws of the State of New York in the County of Erie.
Change in Law - lf there is a change (including changes in interpretation) in law, regulation, rule, ordinance, order, directive, filed tariff, decision, writ, judgment, or decree, by a governmental authority or regulatory body or the regional Independent Systems Operator ("ISO"), or there are any fees, or costs imposed or implemented by a governmental authority or the regional Independent System Operator ("lSO",“PJM”); or there is market movement related to increased costs; or there is a change in cost for Supplier to service Customer; and the change causes Supplier to incur operating or other costs or expenses related to the services in this Agreement; or there is a change in business conditions, in order to maintain the same level and quantity of delivery of energy, these costs and expenses may, at our discretion, to the extent permitted by applicable law or regulatory rules, be assessed to Customer's invoice as additional pass-through charges or additional line-item and Customer agrees to pay the pass-through charges.
Material Misrepresentations- Customer acknowledges that the Supply Price offered pursuant to any Transaction hereunder is based in part on Customer representations as stated on page one (1) of this Agreement. For any costs incurred, as a result of any variance in the estimated annual kWh/ccf on page one (1) of this Agreement, Supplier reserves the right to pass through such costs. For any costs incurred as a result of a variance in any other Customer representation on page one (1) that materially impacts Supplier costs or profits, Supplier reserves the right to pass through such costs ; or to terminate the Agreement with thirty (30) days written notice to Customer as Supplier deems appropriate.
Emergencies, Outages, & Power Quality and Consistency- The Utility will continue to operate and maintain the infrastructure, including but not limited to, electric transmission lines, wires, and apparatuses. The Utility is still responsible for upkeep, Emergency Services, and outages. The Customer acknowledges that New Wave Energy is not liable or responsible for the event of power outages by any other entity besides New Wave Energy. If Customer encounters a situation such as a power outage, emergency power situation, or a reduction in normal power quality, Customer should contact the Utility at the emergency service number provided by the Utility.
Emergency Contact Numbers: Central Hudson Gas and Electric: (800) 527-2714; Consolidated Edison of NY: (800) 752-6633; Corning Natural Gas: (607) 936-3755; National Grid (KED-NY): (718) 643-4050; National Grid (KED-LI): (800) 490-0045; National Grid: (800) 892-2345; National Fuel Gas: (800) 444-3130; NYSEG: (800) 572-1131; Orange and Rockland: (877) 434-4100; or Rochester Gas and Electric: (800) 743-1701 (electric) /(800) 743-1702 (gas).
Service Disconnection- Local Utility companies have the exclusive ability to disconnect Customer's service. The Supplier does not have this ability or authority. Failure to make full payment of charges due as outlined herein and sent via invoice will be grounds for disconnection in accordance with regulatory rules on termination of service to non-residential customers.
Governmental Authority- New Wave Energy is not liable for any damages due to an interruption of service caused by acts of any governmental authority or changes in laws, rules, regulations, legislation, force majeure circumstances, practices or procedures of any governmental authority.
FERC Order 745 Costs- Customer's Agreement rate(s) do not include any FERC Order 745 Costs associated with serving your Accounts. FERC Order 745 Costs are considered additional costs under this Agreement and are passed-through to the Customer. Any modifications or conditions to the treatment of FERC Order 745 Costs under the ISO tariff or otherwise shall be deemed a change in law or change in cost of service as described within the Change in Law/Change in Cost of Service provision within this Agreement. "FERC Order 745 Costs" means any costs or charges imposed by the ISO or grid operator on load served by Supplier in complying with Federal Energy Regulatory Commission ("FERC") Order No. 745 18 CFR Part 35 (March 15, 2011) as may be modified, amended or suspended.
Customer Protection- The energy services provided by Supplier are protected by the terms and definitions of this Agreement. The services provided by the Utility are protected by the Non-Residential Rules of the New York State Department of Public Service. Any questions regarding the competitive, deregulated, energy market, including information about Energy Services/Supply Companies (ESCOs) can be referred to the New York State Public Service Commission. Customer may also contact Supplier’s Customer Service Department at 1-855-53-ENERGY or the Department ESCO hotline at 1-888-697-7728 with any questions Customer may have.
Public Recognition and Affiliate Advertising- New Wave Energy shall have the discretion to disclose and publicize the identity of Customer as a client of New Wave Energy and shall be entitled to display the Customer’s logo on Supplier Website and other Advertisement literature.
Confidentiality- The contents of this Agreement and all other documents exchanged between the Supplier and Customer which relate to this Agreement are confidential and shall not be disclosed to any third party. This obligation between both Parties shall last for a period of twenty-four (24) months following the expiration or termination of this Agreement. Any information released before this threshold shall be accompanied by written consent of both Parties.
Dispute Resolution- In the event of a billing dispute or a disagreement involving NWEC’s service hereunder, the parties will use their best efforts to resolve the dispute. Customer should contact NWEC by telephone or in writing as provided above. The dispute or complaint relating to a residential customer may be submitted by either party at any time to the DPS pursuant to its Complaint Handling Procedures (“Procedures”) by calling the DPS at 1.800.342.3377 or by writing to the DPS at: New York State Department of Public Service, Office of Consumer Services, Three Empire State Plaza, Albany, New York 12223, or through its website at: www.dps.state.ny.us. Customer must pay the bill in full, except for the specific disputed amount, during the pendency of the dispute.
WAIVER OF JURY TRIAL- IN CONNECTION WITH ANY DISPUTE ARISING IN CONNECTION WITH THIS AGREEMENT AND/OR THE TRANSACTIONS CONTEMPLATED ALL PARTIES HEREIN WAIVES, TO THE FULLEST EXTENT ALLOWED BY LAW, ALL RIGHTS TO, AND AGREES NOT TO SEEK OR DEMAND, A TRIAL BY JURY WITH RESPECT TO ANY SUIT, ACTION, CLAIM OR PROCEEDING RELATED TO THIS AGREEMENT.
Severability- If any provision of this Agreement, in whole or in part, is held by a court or regulatory agency of competent jurisdiction to be invalid, void or unenforceable, the remaining conditions shall continue in full force without being invalidated in any capacity.
Force Majeure- If either Party is unable to perform its obligations under this contract due to force majeure, other than Customer's obligation to pay for electric and/or natural gas delivered hereunder, performance of such obligations shall be suspended until the force majeure is corrected. The Party claiming such inability shall give written notice thereof to the other Party as soon as practicable after the occurrence of the force majeure. Force majeure shall mean acts of God, strikes, lightning, fires, floods, explosions, storms or storm warnings, breakage of machinery, transmission lines, or pipelines, freezing of wells or pipelines, sudden failure of gas or electric supply, grid constraints, failure or curtailment of firm transportation, increased capital or collateral requirements imposed by the grid operator, or systems operator ("IS0", "PJM", "Transco"), and any other causes not within the control of the Party claiming force majeure. Any suspension of obligations under this paragraph shall not extend the term of this Agreement. During any curtailment caused by force majeure, Customer's contracted electric and/or natural gas rate shall be subject to change at Supplier's discretion.
Default Liability- FOR BREACH OF ANY PROVISION OF THIS AGREEMENT FOR WHICH AN EXPRESS REMEDY IS PROVIDED, SUCH EXPRESS REMEDY SHALL BE THE SOLE AND EXCLUSIVE REMEDY. THE BREACHING PARTY’S LIABILITY SHALL BE LIMITED AS SET FORTH IN SUCH PROVISION AND ALL OTHER DAMAGES AT LAW OR IN EQUITY SHALL NOT APPLY. THE PARTIES ACKNOWLEDGE THAT ACTUAL DAMAGES WOULD BE DIFFICULT OR IMPOSSIBLE TO DETERMINE AND IN THE ABSENCE OF SUCH LIQUIDATED DAMAGES PROVISION, OBTAINING AN ADEQUATE REMEDY WOULD BE INCONVIENENTAND THAT SUCH LIQUITATED DAMAGES CONSTITUTE A REASONABLE APPROXIMATION OF THE NON-DEFAULTING PARTY’S HARM OR LOSS.
TERMINATION OF SERVICE PROVISIONS:
Termination of Service: Customer will be subject to an Early Termination Fee (ETF) as calculated and described hereafter, if Agreement is terminated before the expiration of its initial term, or any subsequent renewal term.
EARLY TERMINATION OF SERVICE PROVISIONS:
(a). Customer- Should Customer Default, Supplier shall have the right to terminate this Agreement by delivering written notice to Customer. Supplier has sole discretion to calculate the Termination Value and to charge such a calculated amount. Under all circumstances, Customer shall remain obligated to pay any and all other amounts owed by Customer to Supplier outlined within this Agreement within a fifteen (15) day threshold from the date the invoice has been set.
(b.) Supplier- Should Supplier Default, Customer shall have the right to terminate this Agreement by delivering written notice to Supplier. In the event that the Supplier defaults, the customer will be automatically returned to the responsibility of the Utility with no interruption of services.
Calculation of Early Termination Fee- If Commercial Customer, Early Termination Fee is equal to the remaining Agreement kWh or ccf Quantity as calculated by Supplier multiplied by $0.01/kWh or $0.10/ccf; or the maximum allowed by law. If Residential Customer with one (1) to twelve (12) months remaining on a Fixed Agreement Early Termination Fee will not exceed $99.00. For Residential Customers with more than twelve (12) months remaining in their Initial Term the Early Termination Fee will not exceed $199.00.
Entire Agreement- This Agreement is all encompassing and embodies the entire Agreement and mutual understandings between the Parties. This Agreement (including Enrollment Consent Forms, LOAs, Riders, Addendums, any Notices and Appendences, supersedes all prior agreements and understanding between Parties, whether written or oral, with respect to the subject matter herein.
Customer Disclosure Statement (Summary)
Energy Supply Rate: kWh: Customer will pay a fixed or variable rate to Supplier as agreed upon between Customer and Supplier herein.
Term: Start Month will be on or after your next scheduled meter read from your Utility and continue twelve (12) months thereafter; or as otherwise indicated. Enrollment may take up to two (2) full billing cycles to complete.
Customer’s Right to Rescission: The Customer, named herein has the right to rescind this Agreement without penalty within three (3) days after the effective, executed signature date with all of its Terms and Conditions, is executed and received. Following the expiration of three (3) days, if the Customer should choose to terminate the Agreement, before the expiration of the Term, the Customer will be subject to the penalties described within the “Early Termination of Service” provision.
Renewal Provision: Auto-renewal with a month-to-month, index variable rate unless terminated by Customer upon expiration of Initial Term; or as otherwise indicated.
Late Payment: 1.5% of monthly bill amount owed
Early Termination Fee: If Commercial Customer, Early Termination Fee is equal to the remaining Agreement kWh or ccf Quantity multiplied by $0.01/kWh or $0.10/ccf; or the maximum allowed by law. If Residential Customer with one (1) to twelve (12) months remaining on a Fixed Agreement Early Termination Fee will not exceed $99.00. For Residential Customers with more than twelve (12) months remaining in their Initial Term the Early Termination Fee will not exceed $199.00.
Conditions in which savings to customer are guaranteed: Not applicable.
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