Terms and Conditions
These Terms and Conditions (“Terms and Conditions”) shall govern the purchase and lease of any products (“Products”) and related installation services (“Services”) by buyer (“Buyer”) from Powers Oil Company, Ltd. dba Powers Oil and Propane (“Company”). These Terms and Conditions take precedence over Buyer’s additional or different terms and conditions, to which notice of objection is hereby given and acceptance by Buyer is limited to these Terms and Conditions. Any changes in these Terms and Conditions must specifically be agreed to in writing by Company and Buyer. The parties expressly agree that except for the particular products and services, quantity, lock-in pricing, requested delivery dates and location on an accepted purchase order, any terms and conditions on Buyer’s purchase order will have no effect.
- Orders. All orders placed with Company must be in writing (“Orders”). Any Order shall only be accepted and binding upon Company upon written acceptance by Company. Company may reject any Order in its reasonable discretion.
- Price and Payment. Unless Company has agreed to a lock-in pricing arrangement or pre-buy arrangement pursuant to an accepted Order, Buyer agrees to pay Company’s prices in effect on the date when Buyer places an Order, or for automatic deliveries, on the date of delivery. Buyer shall pay the prices on Company’s invoice(s), plus all applicable federal, state and local sales and similar taxes. Unless required to be paid in advance, Buyer will pay Company all fees and costs within thirty (30) days after the date of Company’s invoices, without set-off or deduction. Buyer grants to Company a purchase money security interest in the Products until all payments have been made. Company may file a financing statement for the security interest and Buyer agrees to sign any financing statements or other documents necessary to document Company’s security interest. Pursuant to Company’s Customer Referral Program, Company will provide you with a $25 credit on your account in the event you refer a new customer to Company who purchases and pays for a minimum of 150 gallons of propane from Company.
- Late Fees and Charges. If Buyer fails to make timely payment, Company may charge interest on the amounts due at 1.5% per month or the maximum interest rate permitted by law, whichever is lower, until paid in full. Buyer shall also reimburse Company for all costs and expenses (including collection costs and attorneys’ fees) incurred by Company in collecting any past due balances, enforcing its security interest, or other amounts owed to Company by Buyer. Buyer further agrees to pay additional fees, rates and charges which may be assessed and are subject to change without prior notice, when additional services are required or requested, including but not limited to, out of gas service calls, returned check fees, Rent, service and installation fees, fees to retake possession of any Leased Equipment and other charges.
- Delivery. Company may, but is not obligated to, choose not to deliver Products or perform Services if, in its sole discretion, it believes that doing so will pose an unnecessary risk of injury or harm to Buyer, its employees, or the public, without liability. Buyer agrees that Company may suspend Services if Company believes an unsafe condition exists. Company will perform the Services per the agreed schedule. Company offers two types of delivery: (i) Keep Full Service, in which Company will monitor Buyer’s usage and make deliveries to Buyer to ensure Buyer does not run out of required Product; or (ii) Will Call, in which Company will deliver propane only after Buyer requests a delivery. Will call delivery times can vary, but are typically made within ___ to ____ business days after an Order is accepted. A minimum order of 150 gallons is required for all will call orders.
- Acceptance. Products and Services are deemed accepted upon receipt of Products or performance of Services unless notice of defect is received within five (5) days after receipt. In the event of Buyer’s rejection of defective Product(s), Company’s sole and exclusive obligation to Buyer shall be, at Company’s option, to exchange such Product(s) for a new one of the same type or to provide Buyer with a refund or credit in the amount of the price of the Product. Rejection of the Product does not void Buyer’s obligation to pay for Services rendered in connection with these Terms and Conditions.
- Leased Equipment. The provisions of this Section 6 shall apply in the event Company leases to Buyer storage tank(s) or cylinder(s), regulator(s), appliance(s), meter(s) and/or related equipment, (together with all attachments, replacements and parts the “Leased Equipment”).
Buyer agrees (i) Buyer will not allow anyone to make any adjustments, connections or disconnections to the Leased Equipment or remove or pump-out the Leased Equipment without Company’s written permission; (ii) Buyer must notify Company immediately if the Leased Equipment is damaged or malfunctions; (iii) if Buyer sells the premises upon which the Leased Equipment is placed, Buyer will notify Company at least thirty (30) days in advance and will inform the purchaser that the Leased Equipment is owned by Company; (iv) Buyer is responsible for securing any permits, licenses or approvals necessary to use and operate the Leased Equipment; (v) Buyer must use the Leased Equipment in a careful and proper manner in conformity with all Federal and State statutes, regulations and applicable laws; and (vi) the Leased Equipment is to be used solely for Products sold by Company and it is mutually understood and agreed that the products of no other company may be stored in the Leased Equipment.
The Leased Equipment will at all times remain the sole and exclusive property of Company and Buyer shall have no right, title or interest in the Leased Equipment except as to the use of the Leased Equipment subject to these Terms and Conditions, and the Leased Equipment will not become a fixture or a part of Buyer’s real property. Buyer must keep the Leased Equipment free and clear of and from all liens, pledges, hypothecations, encumbrances, charges, or other security interests of any kind. Further, Company may affix plates or markings on Leased Equipment indicating Company’s ownership and Buyer shall not remove or suffer or permit the removal of plates, markings, tags, signs or other means of identification indicating that Company is the owner of the Leased Equipment.
From the date Company delivers the Leased Equipment to Buyer, Buyer shall assume and bear the entire risk of loss for theft, damage, destruction, death, or injury to any person, property or the Leased Equipment from any and every cause whatsoever. In the event of damage or loss to the Leased Equipment (or any part thereof) and irrespective of payment from any insurance coverage maintained by Buyer, you shall at the option of Company, (i) repair the Leased Equipment to good condition and working order; (ii) replace the Leased Equipment (or any part thereof) with like equipment in good repair, condition and working order and transfer clear title to such replacement equipment to Company; or (iii) pay to Company the replacement value of the Leased Equipment. Upon any termination in Services, Buyer agrees to promptly surrender to Company all Leased Equipment in the same condition as when provided to Buyer, ordinary wear and tear excepted.
- Rental Fee. Buyer agrees to pay Company a rental fee (“Rent”) for any Leased Equipment installed at Buyer’s property. The amount of Rent can vary depending on, among other things, the size of the tank, the location of the property, and Buyer’s annual usage. Actual Rent will be set forth in Company’s proposal or invoice. The Rent will be waived by Company in the event Buyer enters into a lock-in or pre-buy arrangement with Company and purchases the contractual amount described in the Order. Buyer otherwise agrees to pay any Rent due as invoiced by Company in accordance with Section 2.
- Equipment Installation. Company will deliver and install any Products and equipment purchase or leased by Buyer, and Buyer agrees to be at the premises at the time of the installation for liquid propane training, if applicable. Electric service must be available at the premises before scheduling installation. Company will attempt to install equipment at a place of Buyer’s choosing, however, Company reserves the right to install equipment in the manner and at the location determined by Company and the location may not be changed without the prior written consent of Company. Buyer is responsible for properly installing all appliances prior to installation of any purchased or Leased Equipment. If Buyer has a Company meter installed on any equipment, Buyer will be billed for Product usage. Company reserves the right to bill based on an estimated usage amount, prior to taking an actual reading. Upon Company’s reading of any installed meter to determine usage: (i) Buyer will receive a credit to the extent that Buyer’s estimated billed usage amount exceeds the actual usage amount or (ii) Buyer will be charged an additional amount to the extent that the actual amount of Product used exceeds the estimated amount. A monthly Meter Fee shall be applied in the event Buyer as a meter installed.
- Access to Equipment. Company will have an irrevocable right to enter Buyer’s property without prior notice for deliveries of Product, inspection, servicing or removal of Leased Equipment, and Buyer agrees to fully cooperate with Company and provide Company with safe and unimpeded access to equipment, including but not limited to, access free of ice, snow, water, and other hazards. Buyer responsible for the maintenance and repair of all equipment owned by Buyer, including compliance with applicable laws and regulations. Buyer is required to notify Company in the event that Buyer disconnects its propane system or adds or removes appliances so that Company may conduct a leak check.
- Warranty Disclaimer. COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PRODUCTS OR SERVICES PERFORMED UNDER THESE TERMS AND CONDITIONS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AS TO THE CONDITION, MERCHANTABILITY, DESIGN OR OPERATION OF THE EQUIPMENT, ITS FITNESS FOR ANY PARTICULAR PURPOSE, THE QUALITY OR CAPACITY OF THE MATERIALS IN THE EQUIPMENT OR WORKMANSHIP IN THE EQUIPMENT, NOR ANY OTHER REPRESENTATION OR WARRANTY. BUYER ACCEPTS ALL PRODUCTS AND SERVICES DELIVERED AS IS.
- Indemnification. Buyer will indemnify, defend, and hold Company, its directors, officers, employees, subsidiaries, affiliates, and the successors and assigns harmless against all claims, liabilities, obligations, demands, damages, expenses (including reasonable attorney fees), and amounts paid in settlement by, imposed on or incurred by Company related to acts or omissions of Buyer or Buyer’s use of any Products, Leased Equipment or Buyer owned equipment.
- Limitation of Liability. Company’s total liability arising from the Products and Services, under any theory of liability, will be limited to the amounts received by Company from Buyer for the particular Product or Service giving rise to a claim. IN NO EVENT WILL COMPANY BE LIABLE FOR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND CONDITIONS. No action relating to the Products or Services may be brought more than one year the date of the purchase order giving rise to the claim.
- Insurance. Buyer shall be responsible for its own general, broad form comprehensive insurance policy to cover all of its acts or omissions related to the Products. Buyer is not permitted to submit any claim against Company’s insurance coverage related to these Terms and Conditions, the Products, or the Services. Further, Buyer shall procure and maintain, at Buyer’s expense, insurance that provides coverage against any damages to the Leased Equipment including, but not limited to, damages caused by the perils of fire, physical loss and damage, theft, vandalism, malicious mischief, collapse and water damage. The insurable value shall not be less than the full replacement cost of the Leased Equipment. The insurance shall name Company as the loss payee and Buyer shall give Company at least thirty (30) days prior written notice of any material alteration in the terms of such policy or of the cancellation of the policy.
- Independent Contractors; Compliance. The parties acknowledge and agree that each party is an independent contractor of the other party and cannot bind the other party in any respect. Company may complete the Services in any manner it deems necessary or appropriate. Neither party is responsible for the actions of the other party, its agents, independent contractors or employees. Buyer will comply with all applicable laws, regulations and orders.
- Termination. Company may terminate any Order at any time in its discretion. Buyer will pay for all Products and Services received through the termination date.
- Confidentiality. Buyer will treat Company’s Confidential Information as confidential and will not disclose to others or use it for any purpose except to comply with these Terms and Conditions. “Confidential Information” includes, without limitation, whether in writing or not, these Terms and Conditions, information not generally known to the public, Products, Services, strategies, pricing, trade secrets, know-how, financial information, sales and distribution information, actual and potential customers. Buyer is responsible for any disclosure of Confidential Information under its possession or control.
- Safety Information. Safety information has been or will be supplied in Buyer’s Welcome Packet. If you did not receive the safety information, please contact Company at 330-821-8387 and Company will mail it to you. Additional safety information is provided at Buyer is responsible for understanding all safety guidelines, rules, and laws related to maintaining the Products and Services. If you smell propane or experience any adverse propane conditions or safety-related matters, you should immediately dial 9-1-1, contact Company at 330-821-8387, and follow all other gas leak emergency procedures as stated in your Welcome Packet. Company strongly recommends purchasing a carbon monoxide, propane and methane gas detector.
- Force Majeure. Notwithstanding anything in these Terms and Conditions to the contrary, should Company be unable to perform or observe any obligations required to be performed by Company due to any circumstances whatsoever beyond Company’s reasonable control, including without limitation, inability of Company to meet Company’s demand for Products from Company’s normal and customary sources of supply, acts of God, war, civil disturbance, pandemic, fire or casualty, labor dispute, governmental action , as well as terminal, refinery, pipeline, or transportation disruptions the Company, for so long as such condition exists, shall be excused by Buyer from such performance, provided Company takes appropriate reasonable steps as soon as reasonably practical upon the termination of such condition to recommence performance. In the event any of the contingencies or circumstances beyond Company’s control occur, Buyer understands and agrees that Company retains the right, without limitation and at Company’s sole discretion, to allocate Company’s available Products and distribution among all of Company’s respective customers, in any manner which Company deems appropriate under such circumstances.
- Governing Law. These Terms and Conditions shall in all respects be governed by, and construed in accordance with, the laws of the state of Ohio, including all matters of construction, validity and performance. Customer agrees to submit to the exclusive jurisdiction of the courts having jurisdiction over Stark County, Ohio.
Miscellaneous. If a provision of these Terms and Conditions is held invalid, illegal or unenforceable, such holding will not affect the other sections in these Terms and Conditions. Company can exercise any and all remedies allowed by law. If Company waives a Buyer breach or fails to waive a Buyer breach, it is not deemed to be a waiver to other breaches. Buyer may not assign any of its rights, interests, obligations or liabilities with regard to the purchase of Products or receipt of Services. These Terms and Conditions shall survive termination of Buyer’s relationship with Company, which Buyer’s permission for Company to contact Buyer to collect any debts owed or with regard to the return of Leased Equipment. Company reserves the right to amend or add to these Terms and Conditions at any time by giving Buyer prior written notice of the change(s). The notice may be in the form of a bill insert, email, or other written notification. These Terms and Conditions may not be modified orally and describe the entire agreement between Company and Buyer with respect to its subject matter. Any prior arrangements, agreements, contracts, representations, warranties, purchase orders, bids, proposals, offers, or other communications, written or oral, that are inconsistent with these Terms and Conditions, are superseded and of no force or effect.