HEATING OIL: Slomin's agrees to sell Buyer and Buyer agrees to purchase from Slomin's all the specified gallons of heating oil to be delivered under the terms and conditions described in Slomin's Oil Delivery Agreement the terms of which are incorporated herein as if fully set forth herein. All Heating Oil shall be supplied under the Slomin's delivery system and paid for before the date of delivery. Minimum purchase: 100 gallons. In the event that the delivery exceeds the requested purchased gallons, Slomin's reserves the right to charge the payment provided for the balance minus a discounted per gallon amount on the additional gallons. When ordering fuel, BUYER'S credit card is charged (settled) to the payment method entered at the time the order is placed. Slomin's shall be permitted to suspend oil delivery without notice if Buyer is in arrears with regard to any monies owed by Buyer to Slomin's.
LIABILITY: Slomin's is not responsible for damages or loss caused for failure to make a delivery, or other conditions, which may arise and prevent the operation of the heating system. Slomin's shall not be held responsible for failure to make a delivery due to shortages, strikes, force majeure, or conditions beyond Slomin's's control. Buyer is responsible to provide supplemental heat or take steps to prevent freeze-up in the event of heating system failure, and to monitor premises and ensure proper temperatures are maintained. Since changes in usage and weather factors cannot be anticipated, Slomin's will not be responsible for damages due to fuel tank run-outs. It is also the Buyer's responsibility to notify Slomin's of fuel tank location, fill pipe location, and any changes in condition of fuel tank between execution of contract and prior to delivery. It is the Buyer's responsibility to ensure that any fuel tank which is no longer in use be abandoned properly, according to local laws, and to ensure that a delivery cannot be made to the old fuel tank or fill pipe location. While an oil spill should not occur before, during, or after delivery with a properly designed and functioning oil tank, Slomin's does not guarantee that no spill will occur.
EMERGENCY SERVICES: If Slomin's determines, in its sole discretion, that a condition or event of which Slomin's becomes aware requires the notification, intervention or engagement of a third party (including a third party emergency service), to preserve the health and safety of persons or use of property, Slomin's is hereby authorized to notify and/or engage such third parties on Buyer’s behalf. Buyer agrees to pay or reimburse, as applicable, all costs and expenses incurred in connection with such third party services and expressly acknowledges and agrees that Slomin's is under no obligation to pay any such costs for the engagement of such third parties. Slomin's reserves the right to request reimbursement from Buyer in the event that Slomin's pays or fronts any such costs solely in the interests of exigency.
EARLY CANCELLATION OR TERMINATION FOR NON-PAYMENT:
If during the term of this "ONE TIME HEATING OIL DELIVERY AGREEMENT", Buyer cancels this agreement or a scheduled delivery for any reason, Buyer receives less than the 100 gallon minimum at time of delivery for any reason, or if Slomin's terminates this agreement for non-payment, , Buyer shall pay Slomin's the sum of $99 for liquidated damages for Buyer's breach in addition to any amount owed by Buyer for oil actually delivered and unpaid for, plus Slomin's attorneys fees. Slomin's shall promptly invoice Buyer for such. Should Slomin's determine that the delivery of the ordered number of gallons or any delivery of oil to be unsafe or impractical, Slomin's reserve’s the right to reject this Agreement.
BUYER ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS A LIQUIDATED DAMAGE CLAUSE.
LEGAL ACTION / BINDING ARBITRATION: ANY DISPUTE BETWEEN THE PARTIES OR ARISING OUT OF THIS AGREEMENT, INCLUDING ISSUES OF ARBITRABILITY, SHALL, AT THE OPTION OF ANY PARTY, BE DETERMINED BY BINDING AND FINAL ARBITRATION BEFORE A SINGLE ARBITRATOR ADMINISTERED BY NATIONWIDE ARBITRATION SERVICES INC. PURSUANT TO ITS RULES AT WWW.NATIONWIDEARBITRATIONSERVICESINC.COM OR ARBITRATION SERVICES INC. PURSUANT TO ITS RULES AT WWW.ARBITRATIONSERVICESINC.COM, OR THEIR SUCCESSORS OR ASSIGNS, THE TERMS OF THIS AGREEMENT AND THE FEDERAL ARBITRATION ACT (FAA), EXCEPT THAT NO PUNITIVE OR CONSEQUENTIAL DAMAGES (TO THE EXTENT PERMITTED BY LAW) MAY BE AWARDED. The parties consent to repeat arbitrators who shall be bound by the terms of this agreement and shall on request of a party, conduct proceedings by telephone, video or submission of papers. A party requesting in-person discovery, in-person hearing or a transcript of the discovery proceeding or hearing, shall pay for the cost of such transcript and arbitrator fees charged in connection with the discovery request and in-person hearing, which may be allocated among the parties by the arbitrator in the final award. By arbitrating, the parties waive their right to a trial before a judge or jury, waive their right to appeal the arbitration award and waive their right to participate in a class action. In the event of any litigation between the parties they waive the right to a jury trial unless prohibited by law. Service of process or papers in any legal proceeding or arbitration between the parties may be made by First-Class Mail delivered by the U.S. Postal Service addressed to the party's address designated in this agreement, on file with an agency of the state, or any other address provided by the party in writing to the party making service. The parties submit to the jurisdiction and laws of New York, except for arbitration which is governed by the FAA and the arbitration rules. The parties are engaged in interstate commerce and the FAA and arbitration rules shall govern, notwithstanding any state law to the contrary. Any action or arbitration between the parties must be commenced within one year of the accrual of the cause of action or shall be barred. The prevailing party in any litigation or arbitration is entitled to recover its legal fees, costs and disbursements so that the party is made whole from the other party. In the event a party commences a proceeding to confirm an arbitration award, the prevailing party shall be entitled to attorney fees, costs and disbursements for such proceeding. All actions, arbitrations or proceedings by either party must be based on the provisions of this agreement and any other action that Subscriber may have or bring against Slomin's with respect to other services rendered in connection with this agreement shall be deemed to have merged in and be restricted to the terms and conditions of this agreement.
SUBSCRIBER ACKNOWLEDGES THAT THIS AGREEMENT CONTAINS AN AGREEMENT TO ARBITRATE DISPUTES AND THAT ARBITRATION IS BINDING AND FINAL AND THAT SUBSCRIBER IS WAIVING SUBSCRIBER’S RIGHT TO TRIAL IN A COURT OF LAW, A JURY TRIAL AND THE RIGHT TO COUNTERCLAIM IN ANY ACTION OR ARBITRATION COMMENCED BY Slomin's, AND OTHER RIGHTS.
FULL AGREEMENT / SEVERABILITY: This agreement constitutes the full understanding of the parties and may not be amended, modified or canceled, except in writing signed by both parties. Subscriber acknowledges and represents that Subscriber has not relied on any representation, assertion, guarantee, warranty, collateral agreement or other assurance, except those set forth in this Agreement. Subscriber hereby waives all rights and remedies, at law or in equity, arising, or which may arise, as the result of Subscriber’s reliance on such representation, assertion, guarantee, warranty, collateral agreement or other assurance. To the extent this agreement is inconsistent with any other document or agreement, whether executed prior to, concurrently with or subsequent to this agreement the terms of this agreement shall govern. This agreement shall run concurrently with and shall not terminate or supersede any existing agreement between the parties unless specified herein. Should any provision of this agreement be deemed unenforceable, the provision shall be deemed modified and enforceable to the extent deemed enforceable and in any event shall not render any other provision in this agreement unenforceable.
