3) DELIVERY PRICE: Heating Oil price listed in “ORDER INFORMATION” does not include any federal, state, and local taxes now or hereafter imposed on the sale of such Heating Oil. This agreement is for one-time oil delivery only. SLOMIN'S allows a FIVE (5) gallon courtesy leeway from the applicable discount range. If customer’s tank receives an amount below the “Requested Gallons” and is outside of the leeway allowed, the BUYER will be charged at the corresponding price listed in the “PRICING TIERS” above based on the number of gallons delivered. BUYER agrees that SLOMIN'S can charge the payment method listed in this agreement for any and all additional charges that may occur. THIS IS NOT AN AGREEMENT TO PERFORM SERVICE ON BUYER’S HEATING SYSTEM.
4) EFFECTIVE DATE/TERM: This Agreement is effective as of the date on which the parties sign it (“Effective Date”) and shall continue until the specified number of gallons has been delivered (subject to the terms of this Agreement), and/or BUYER’s oil tank is filled, whichever occurs first.
5) 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. In the event that the delivery exceeds the requested gallons purchased, SLOMIN'S will recalculate the invoice based upon the number of gallons delivered and if the additional gallons delivered changes the PRICING TIER of the original order SLOMIN’S will then invoice the BUYER at the revised price per gallon. SLOMIN’S reserves the right to charge the payment method provided for any additional monies owed for the delivery. 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.
6) 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.
7) 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.
8) EARLY CANCELLATION OR TERMINATION FOR NON-PAYMENT: If during the term of this "ONE TIME HEATING OIL DELIVERY AGREEMENT", BUYER cancels this agreement, BUYER disputes the amount charged for the transaction with the Credit Card company, the scheduled delivery is less than the 50 gallons for any reason, or if SLOMIN’S terminates this agreement for non-payment, BUYER shall pay SLOMIN’S the sum of $50 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. Payment by Buyer shall be due within ten (10) days after such invoice date, with interest of 15% per year (or the maximum rate allowable by law, if lower) until paid in full. 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.
9) LEGAL ACTION / BINDING ARBITRATION: BUYER AGREES THAT BUYER MAY BRING CLAIMS AGAINST SLOMIN’S ONLY IN BUYER’S INDIVIDUAL CAPACITY AND NOT AS A CLASS ACTION PLAINTIFF OR CLASS ACTION MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING, AND BUYER EXPRESSLY WAIVES BUYER’S RIGHT TO FILE OR PARTICIPATE IN A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE PROCEEDING. IF ANY COURT OR ARBITRATOR DETERMINES THAT THE CLASS ACTION/CLASS ARBITRATION WAIVER SET FORTH IN THIS SUBSECTION IS UNENFORCEABLE WITH RESPECT TO A PARTICULAR CLAIM OR FORM OF RELIEF, THAT DETERMINATION SHALL APPLY ONLY TO SUCH CLAIM OR RELIEF, AND THE REMAINDER OF THIS SECTION SHALL REMAIN IN FULL FORCE AND EFFECT. 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 ARBITRATION SERVICES INC., ITS SUCCESSORS OR ASSIGNS, PURSUANT TO ITS ARBITRATION RULES AT WWW.ARBITRATIONSERVICESINC.COM AND THE FEDERAL ARBITRATION ACT, EXCEPT THAT NO PUNITIVE OR CONSEQUENTIAL DAMAGES (TO THE EXTENT PERMITTED BY LAW) MAY BE AWARDED. The arbitrator shall be bound by the terms of this agreement and is authorized to conduct proceedings by telephone, video or by submission of papers. Unless the parties agree otherwise, any in-person arbitration hearing shall take place in the State of New York, County of Nassau, or, at BUYER’s option, in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you reside at the time the claim is submitted to arbitration, unless you reside outside of the United States. Service of process or papers in any legal proceeding or arbitration between the parties may be made by Postage Pre-paid First-Class Mail delivered by the U.S. Postal Service addressed to: If to SLOMIN’S, SLOMIN’S Inc. c/o Legal Department, 125 Lauman Lane, Hicksville, NY 11801; if to the BUYER, the BUYER's address set forth in this agreement or another address provided by the BUYER in writing to SLOMIN’S. The parties agree that this agreement shall be interpreted and enforced in accordance with the laws of New York, except for arbitration which is governed by the FAA. The parties waive trial by jury in any action between them unless prohibited by law and in any action commenced by SLOMIN’S against BUYER, BUYER shall not be permitted to interpose any counterclaim. The prevailing party in any litigation or arbitration is entitled to recover its reasonable legal fees, costs and disbursements so that the party is made whole from the other party. Any action between the parties must be commenced within one year of the accrual of the cause of action or shall be barred. All actions, arbitration or proceedings by either party must be based on the provisions of this agreement and any other claim or cause of action that BUYER may have or bring against SLOMIN’S in respect to other services rendered in connection with or in furtherance of this agreement shall be deemed to have merged in and be restricted to the terms and conditions of this agreement, and the consent to arbitrate and other provisions of this paragraph shall survive the termination of this agreement.
BUYER ACKNOWLEDGES THAT THIS AGREEEMENT CONTAINS AN AGREEMENT TO ARBITRATE DISPUTES AND THAT ARBITRATION IS BINDING AND FINAL AND THAT BUYER IS WAIVING BUYER’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.
10) 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. BUYER acknowledges and represents that BUYER has not relied on any representation, assertion, guarantee, warranty, collateral agreement or other assurance, except those set forth in this Agreement. BUYER hereby waives all rights and remedies, at law or in equity, arising, or which may arise, as the result of BUYER’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.
