The terms and conditions below comprise Apple's General Customer Agreement and govern your purchase of heating oil and any other services from Apple.
1. SUPPLY OF HEATING OIL. You hereby request Apple to deliver oil to you on a “will call” basis whereby you schedule your oil deliveries and make a request for each oil delivery. Apple’s heating oil may contain environmentally protective biofuels in excess of the minimum amounts mandated by state law. Apple will attempt to make your delivery in a timely manner, but Apple is unable to guarantee delivery on or before a certain date. The parties agree that Apple shall have no liability whatsoever for direct, collateral, consequential or incidental damages in the event that you run out of fuel. Apple may, at its sole option, terminate this Agreement at any time and have no further obligation to supply you with fuel or other services.
2. FUEL COST. You agree that your fuel cost per gallon shall be determined by Apple's Retail Posted Price in the absence of any written agreement between the parties specifying any pricing formula. Apple's Retail Posted Price may fluctuate daily and will be affected by the rise and fall of wholesale oil prices. Your oil price will be written on your metered delivery ticket but is subject to correction for driver or clerical error. Sales and customer representatives of Apple are not authorized to set pricing or to approve accounts or contracts. If a clerical error or an unauthorized offer was made to you, Apple reserves the right to rescind the offer.
3. PAYMENT. You will pay Apple the cash sale price for all the goods and services charged to your account (plus Finance Charges, if any), in full by credit card.
4. FINANCE CHARGES. You agree that if Apple is unable to obtain payment from your credit card provider then you will pay a FINANCE CHARGE on those amounts commencing at the end of the first monthly billing cycle following the month in which those charges are incurred. The FINANCE CHARGE will be computed by multiplying each unpaid amount by a 'Monthly Rate' of 1.5% which is equivalent to an ANNUAL PERCENTAGE RATE (A.P.R.) of 18% for each month the charge remains unpaid after the first 30 days. You expressly authorize Apple, at its option, to apply your payments first to liquidate FINANCE CHARGES and then to your purchases in the order in which they were made. You further agree that Apple, at its sole option, and upon prior notice of at least one full billing period, may amend its terms of sale including due dates, its method of calculating FINANCE CHARGES and the 'ANNUAL PERCENTAGE RATE (A.P.R.)' by which such FINANCE CHARGES are computed. In no event will any FINANCE CHARGE exceed the maximum allowed by law, and any amounts collected in excess of the maximum allowed by law will automatically be applied as a credit toward payment for goods and services provided by Apple.
5. CUSTOMER RESPONSIBILITY You expressly acknowledge and agree that, as a customer, you too have an obligation to help prevent accidents and mitigate losses that may occur during the fueling and use of your heating system. Specifically, you understand and agree that it is your responsibility to: at all times provide all Apple delivery and service personnel with safe, unimperiled entry into, and egress from, your premises or property; upgrade your heating equipment so that it is modern, reliable, free of leaks and heavy corrosion; provide safe and unimpeded access to your heating system; protect your heating system from debris, flammable materials, water, snow and severe cold; inspect your heating system including your oil tank, fill and vent pipes, tank caps, gauges and oil lines frequently for signs of corrosion, leakage, odors, and noises and to notify Apple immediately of any defect or failure of any component(s) of your heating system including your oil tank; monitor vacant or unattended premises on a daily basis to ensure there are no issues or problems with any deliveries or the heating system; install fire, smoke, carbon monoxide, low temperature, and moisture detection systems around the heating system; to mitigate possible damages by providing secondary containment for oil tanks and oil-burning equipment; protect dirt or wooden floors, sump pumps, personal property and finished areas of the home from possible leakage from oil tanks or heating equipment; to mitigate possible damages by ensuring that no leakage or spills are able to be released into the environment; maintain the condition of the chimney; maintain an adequate secondary source of heat in the event of primary heating system failure; maintain adequate boiler room ventilation for proper combustion; perform basic homeowner tasks such as visually inspecting oil tanks, piping, gauges, caps and oil lines for leakage or corrosion, venting air from baseboard and radiators, flushing the low water cut-off, changing fuses, resetting breakers; and scheduling preventive maintenance calls, as well as calls to replace anti-freeze. If you suffer damages or losses due to your failure to take these preventive measures, Apple will not be held responsible for any such damage or losses. Upon request and for a reasonable fee, Apple will install smoke, heat, low temperature, and moisture detection systems as well as secondary containment systems to help prevent accidents and mitigate losses as required in this paragraph. Apple will attempt to deliver oil to you while parked on a public road. However, if your home is more than 50 feet from a public road or if your house is on a busy street, you expressly invite Apple to use your driveway which must be wide enough for, and can sustain the weight of, an oil truck. You must keep such your driveway free of snow, ice, overhanging shrubs or trees, and other impediments. You agree that Apple will not be responsible for damages caused by the weight or width of the oil truck.
6. WARRANTY This is our sole and exclusive warranty to you for services performed by Apple: for thirty (30) days from the date of service, Apple will repair or replace any previously repaired or installed item without charge if it is defective in workmanship or materials. The implied warranties of merchantability and fitness for a particular purpose shall coincide with the duration of the 30-day warranty stated in the preceding sentence but shall not extend thereafter. Your sole and exclusive remedy for breach of warranty, whether express or implied, is repair or replacement, at Apple's option, of equipment, product or parts, at Apple's expense. Apple shall not be liable to you or to any other person for any collateral, incidental or consequential damages resulting from the breach of the foregoing warranties, including personal injury or damage to property. Furthermore, Apple makes no warranty, express or implied, that our services, including oil delivery and heating system repair, will prevent loss of heat, leakage, frozen pipes, soot damage, smoke damage, personal injury, or fire and you agree not to seek recovery from us for any damages or losses caused by any such occurrences or consequences. Apple's failure or inability to respond to a request for service in a timely manner shall in no way create liability for Apple. Apple will not inspect your heating system for defects during any service call or oil delivery beyond the scope required to perform such service call or oil delivery unless you request, in writing, that Apple perform such inspection and pay an additional fee for inspection. You acknowledge that any affirmation of fact or promise made by Apple shall not be deemed to create an express warranty unless included in this contract in writing. No equipment may be returned or repair performed without Apple's prior written approval after Apple first determines that such equipment or repair is defective in materials or workmanship. This warranty is void in case of misuse, abuse, tampering, abnormal usage, damage from accidents or acts of God or nature, or faulty repair by unauthorized persons.
7. INDEMNITY / WAIVER OF SUBROGATION RIGHTS. Parties agree that there are no third-party beneficiaries of this contract. You agree to and shall indemnify and hold harmless Apple, its employees, agents and subcontractors, from and against all losses, damages, costs and expenses (including reasonable attorneys' fees) incurred by Apple as a result of third-party claims, actions and lawsuits, asserted against and alleged to be caused by Apple's performance, negligent performance, or failure to perform any obligation. You, on your behalf and on behalf of any insurance carrier, waive any right of subrogation your insurance carrier may otherwise have against Apple or Apple's employees, agents and subcontractors arising out of this Agreement or the relation of the parties thereto.
8. INSURANCE / ALLOCATION OF RISK. You agree to maintain a policy of Homeowners’ Dwelling and Liability Insurance for liability, casualty, fire, theft, and property damage under which you are named as insured, and which shall on a primary and non-contributing basis cover any loss or damage caused by or related to Apple’s services or equipment in an amount deemed sufficient by you. The parties intend that you assume all potential risk and damage that may arise by reason of failure of the equipment, or Apple’s services and that you will look to your own insurance carrier for any loss or assume the risk of loss. Apple shall not be responsible for any portion of any loss or damage which is recovered or recoverable by you from insurance covering such loss or damage or for such loss or damage against which you are indemnified or insured. You and all those claiming rights under you waive all rights against Apple and its subcontractors for loss or damages caused by or related to Apple’s services or equipment or covered by insurance to be obtained by you, except such rights as you or others may have to the proceeds of insurance.
9. EXCULPATORY CLAUSE. You agree that Apple is not an insurer, that no insurance coverage is offered herein, that insurance is solely your responsibility, and that you will buy from others any insurance that you require to protect your property. You agree that payments you make to Apple are based on the value of the goods and/or services we provide and are not based on the value of property owned by you or others at the premises. As previously stated in Paragraph 12, you have an obligation to prevent accidents and mitigate losses, and Apple shall not be held responsible for any losses or damages related in whole or in part to your failure to take appropriate preventive measures. Nor shall Apple be held responsible for any losses or damages created or contributed to by your negligent actions. Apple is not assuming liability, and, therefore, you agree that Apple shall not be liable to you or to any other third-party, and you covenant not to sue Apple for any loss, economic or non-economic, business loss or interruption, diminution in value, consequential damages (to the extent permitted by law), in contract or tort, personal injury, pain and suffering, or property damage sustained by you or others as a result of equipment failure, human error, or any other cause whatsoever, regardless of whether or not such loss or damage was caused by or contributed to by Apple’s breach of contract, negligent performance to any degree in furtherance of this agreement, any extra contractual or legal duty, strict products liability, or negligent failure to perform any obligation pursuant to this agreement or any other legal duty, except for gross negligence and willful misconduct.
10. LIMITATION OF LIABILITY. You agree that, except for Apple’s gross negligence and willful misconduct, should there arise any liability on the part of Apple as a result of Apple’s breach of contract, negligent performance to any degree or negligent failure to perform any of Apple’s obligations pursuant to this agreement, equipment failure, human error, strict products liability, or any other legal duty, in contract, tort, equity or law, any damages, including but not limited to, actual, compensatory or nominal, that Apple’s liability and damages, whether actual, compensatory, nominal, consequential (to the extent permitted by law), punitive, exemplary, statutory, or any other damage shall be limited to the sum of $2500.00. If you wish to increase Apple’s amount of limitation of liability and damages, you may, as a matter of right, at any time, by entering into a supplemental agreement, obtain a higher limit by paying an annual payment consistent with Apple’s increased liability and damages. This shall not be construed as insurance coverage. Apple’s liability and damages for gross negligence and willful misconduct shall not exceed its available insurance coverage.
11. DEFAULT. You agree that if you fail to pay any amount when due under the terms of this Agreement, then a default will have occurred and Apple may, at its option, demand immediate payment of all amounts due Apple including all amounts billed under separate and/or deferred payment contracts and you expressly agree to immediately pay Apple those amounts. You agree that if Apple hires an attorney or collection agency to collect the amounts you owe, you will pay Apple's reasonable attorney and/or collection agency fees together with all court costs. You agree that in any action commenced by Apple against you, you shall not be permitted to interpose any counterclaim. If you are in default in your payments for work done, you agree that Apple may enforce its claim against your property by filing a lien. You expressly agree that Apple may withhold or terminate fuel deliveries or other goods or services without notifying you under any one of the following circumstances: a) your failure to make any payment when due; b) your death; c) your petition for bankruptcy protection; d) your Agreement to remove from, sell or transfer your interest in the premises to which fuel is delivered or services rendered; or e) your failure to perform Customer Responsibilities outlined in Paragraph 12 above including your failure or inability to maintain a safe, hazard-free work environment for Apple personnel or equipment. This Agreement may not be assigned by you without prior written consent of Apple, and any attempted assignment by you in violation of this Agreement shall be null and void.
12. CANCELLATION. This Agreement may be cancelled by Apple at any time and have no further obligation to supply you with fuel or other services. If you are cancelling an oil delivery order, Connecticut law requires you to provide us with your termination notice, in writing, sent either (1) by Certified mail or private carrier (FedEx, UPS, etc.) to Apple Oil Cancellations, 299 Bishop Avenue, Bridgeport, CT 06610, or (2) by electronic mail (e-mail) to customercare@appleoil.com or (3) by facsimile to Fax Number 203-333-3358. Your termination notice must contain your Name, Address and Customer Number, , and it must be received by Apple at least ONE (1) BUSINESS DAY (Mon-Sat) before the delivery date. IMPORTANT: By law, your failure to follow this procedure can result in your being legally liable for the cost of any delivery made after the date you wanted your oil delivery cancelled. You hereby give Apple permission to contact you at the telephone numbers listed on your account after you terminate your Customer Agreement with Apple, even if you are registered on any state or national “Do Not Call” lists. This permission may be revoked by you in writing at any time.
13. WAIVERS. You agree that if Apple waives any penalty, fee or any of your obligations under this Agreement, it will not prevent Apple from enforcing any penalty fee or obligation in the future.
14. LEGAL ACTION.
ARBITRATION:
YOU MAY BRING CLAIMS AGAINST APPLE ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A CLASS ACTION PLAINTIFF OR CLASS ACTION MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY DISPUTE BETWEEN THE PARTIES OR ARISING OUT OF THIS AGREEMENT, INCLUDING ISSUES OF ARBITRABILITY, SHALL, AT APPLE’S OPTION, 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 (FAA), 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 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 the State of Connecticut, 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, arbitration or proceedings by either party must be based on the provisions of this agreement and any other action that you may have or bring against Apple 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.
I ACKNOWLEDGE THAT THIS AGREEMENT CONTAINS A PROVISION TO ARBITRATE DISPUTES AND THAT ARBITRATION IS BINDING AND FINAL AND THAT I AM WAIVING MY RIGHT TO TRIAL IN A COURT OF LAW.
Signature: _________________________
15. FULL AGREEMENT/SEVERABILITY. You affirm that this is the entire Agreement between the parties and that verbal understandings or Agreement with agents or representatives shall not be binding on Apple unless set forth on this page and initialed by an officer or authorized representative of Apple. Apple's sales representatives are not so authorized. Should any provision of this Agreement be deemed void, all other provisions will remain in effect. This Agreement supersedes and replaces any Agreement or understanding whether written or oral between you and Apple with respect to the subject matter hereof.
Apple Oil
By: ____________________
Name: David Cohen
Title: Executive Vice President
©Standard Oil of Connecticut, Inc. DBA Apple Oil CT LIC. S1-300866 HOD 1370 & HOD 268
Document - AppleOilGeneralCustomerAgreement_v1.0.0.pdf
