These Terms and Conditions for Supply of Fuel Oil, Propane, Equipment and Services (the “Agreement”) are effective upon their receipt by customer (“Customer”) from Dead River Company, LLC (“Company”) or upon the date of delivery by Company to Customer of any fuel oil, propane gas, service work, or installation or placement of equipment by Company, whichever occurs first (the “Effective Date”). Customer and Company are each a “Party” and together, the “Parties”.  Customer should read this Agreement carefully and keep a copy for their records.

1.    FUEL OIL

(a)    Delivery.  Company will make commercially reasonable efforts to deliver fuel oil to Customer in a timely fashion, subject to availability, weather, road and emergency conditions, and other factors beyond Company’s reasonable control.  Delivery of fuel oil may be significantly delayed if there are adverse weather conditions, such as floods, heavy snowfall, or hurricanes, if other factors arise that are beyond Company’s reasonable control, or if the delivery/service address is in a remote area.

(b)    Fuel Oil Tank Ownership, Maintenance and Inspection.  Customer owns their fuel oil tank(s) and is solely responsible for the condition, inspection, care and maintenance of their fuel oil tank(s) at all times.  Company may periodically perform a visual inspection of any above-ground fuel oil tank(s); provided, however, that if the fuel oil tank(s) is enclosed or otherwise inaccessible to Company personnel for any reason, then Customer must provide suitable physical access to the fuel oil tank before scheduling an inspection by Company.  Customer acknowledges and agrees that any inspection of Customer-owned fuel oil tank(s) by Company represents only Company’s assessment of the visible condition of the exterior of the tank(s) at that time only, and is not a guarantee, prediction or binding opinion of the fuel oil tank’s overall condition, usability or performance. Customer agrees that it will notify Company immediately of any concerns as to the integrity of the tank.

2.    PROPANE EQUIPMENT, PROPANE GAS AND RELATED SERVICES

(a)    Propane Equipment.

(i)    Provision.  Company will provide Customer with propane storage container(s) and any and all related equipment (collectively, the “Propane Equipment”) that Company deems necessary to provide propane service to the Customer (but excluding all piping and propane-consuming appliances and other adjoining systems downstream of the outlet of the first stage regulator for Propane Equipment (collectively, “Customer Equipment”)). In exchange for Company providing the Propane Equipment for Customer’s use, Customer will pay to Company the Minimum Use Charges (as defined in Section 2.(a)(iii) below) in effect from time to time.

(ii)    Ownership.  The Propane Equipment is the property of Company, and Customer has no ownership rights whatsoever to the Propane Equipment by virtue of entering into this Agreement.  Customer acknowledges and agrees that all of the Propane Equipment is the personal property of Company, is separate from the real property on which it is located, and is not, and does not become, a fixture of the Customer’s real property.  Title to Propane Equipment does not pass to Customer, to any subsequent purchaser of the property, or to any other third party, including Customer’s creditors.  Company may file a UCC-1 or a similar document evidencing Company’s ownership of the Propane Equipment with the appropriate State, county or other local office where the Propane Equipment has been installed.

(iii)    Minimum Use Charges.

(A)    The “Minimum Use Charge” is the required amount of propane gas that Customer must purchase during the 12-month period from July 1 to June 30 of each calendar year to avoid being charged for the use of the Propane Equipment.  The Minimum Use Charge is calculated based on the type and capacity of the Propane Equipment provided by Company to Customer.  Company may change the Minimum Use Charge at any time.  By continuing to accept services and deliveries under this Agreement and subject to any notices required by applicable law, Customer agrees to pay the then-applicable Minimum Use Charge.

(B)    Company may charge Customer for the use of the Propane Equipment if Customer does not purchase at least the Minimum Use Charge in the twelve (12) month period from July 1 to June 30.  (The Minimum Use Charge requirement for the initial 12-month period will be prorated if the Customer commences service after July 1.)

(iv)    No Customer Modifications.  

(A)    Propane Equipment.  Customer must not tamper with, reposition, open, adjust, connect, disconnect, remove or alter any of the Propane Equipment in any manner after it is installed,  in accordance with the requirements of Liquefied Petroleum Gas Code (NFPA 58).  Customer must notify Company immediately upon becoming aware that the Propane Equipment is malfunctioning, damaged, or has been tampered with in any way.  Customer will only permit Company personnel to make repairs, adjustments, or connect/disconnect the Propane Equipment, or pump out propane gas from any Propane Equipment, in each case to ensure compliance with safety-related ordinances, codes, regulations and laws.

(B)    Customer Equipment.  Customer may change or modify any Customer Equipment, but must coordinate with Company on those changes or modifications if the result is to (x) interrupt the flow of propane to any existing Customer Equipment; or (y) add new Customer Equipment that will be fed by the Propane Equipment.  Permitting or enabling the flow of propane to any Customer Equipment must be performed by Company.

(v)    Customer Responsibilities for Condition and Accessibility of Propane Equipment.

(A)    Damage Impacting Safe Functionality. Company will maintain and repair Propane Equipment at Company’s cost in order to maintain its proper and safe functionality; provided, however, that Customer is responsible for any damage to the Propane Equipment while it is on Customer’s property. If Company is required to fix damage to Propane Equipment caused by Customer, then Company will bill the Customer for that work in accordance with Company’s then-current labor rates, parts charges, and other applicable fees and charges.

(B)    Keeping Propane Equipment Accessible.  Customer must remove all snow and ice from Propane Equipment in areas that experience snowfall and ice so that Company may access the Propane Equipment, make a delivery, or complete service work. Customer is required to keep Propane Equipment and access routes to it free from snow, ice, and any other hazards.  

(vi)    Notice on Sale of Customer Property.  If Customer sells the property on which the Propane Equipment has been installed, Customer agrees that it will notify Company within thirty (30) days after the execution of the agreement for the sale of the property (or sooner, if the closing will occur in less than 30 days) and inform the new owner of the property that the Propane Equipment is owned and serviced by Company and is not transferred to the new property owner as the result of that sale.

(vii)    Duty to Notify of Safety Concerns.  Customer agrees to notify Company immediately if Customer becomes aware or suspects that the Propane Equipment is damaged, malfunctioning or if Customer experiences any issues or potentially safety-related problems with the Propane Equipment.  

CUSTOMER AGREES THAT IF THEY DO NOT FOLLOW THE REQUIREMENTS OF THIS SECTION 2(a), THEN COMPANY IS NOT RESPONSIBLE FOR ANY DAMAGES THAT MAY OCCUR IN CONNECTION WITH THE PROPANE EQUIPMENT, INCLUDING BUT NOT LIMITED TO PERSONAL INJURY, DEATH, OR PROPERTY DAMAGE.

(b)    Propane Gas.

(i)    Delivery. Company will make commercially reasonable efforts to deliver propane gas to Customer in a timely manner, subject to availability, weather, road and emergency conditions, or other factors beyond Company’s reasonable control. Delivery of propane gas or performance of other services by Company may be significantly delayed if there are adverse weather conditions, such as floods, heavy snowfall, or hurricanes, if other factors arise that are beyond Company’s reasonable control, or if the delivery/service address is in a remote area.

(ii)    Exclusive Supplier.  During the Term (as defined in Section 8 below) Company is the exclusive supplier of propane gas for storage in and use with the Propane Equipment. Customer must not permit any propane gas that is not supplied and sold by Company to be used with the Propane Equipment.  If Customer breaches this Section 2(b)(ii), then Company has the right to (A) void any warranty or service obligation on the Propane Equipment; (B) terminate this Agreement; and (C) hold Customer liable for any damage to the Propane Equipment resulting from the Customer’s us or propane that is not provided by Company. 

3.    CUSTOMER EQUIPMENT

(a)    Ownership of Interior Piping and Propane Appliances.  Customer owns and is responsible for the maintenance and safe operation of all Customer Equipment. Customer represents and warrants to Company that (i) all Customer Equipment is safe, operates properly, and is installed, maintained and operated in accordance with all applicable codes and regulatory requirements; and (ii) all interior piping and connections, including those on Customer Equipment, are tight and free of leaks.

(b)    Release. To the extent permitted by law, Customer hereby releases and holds harmless Company and its agents from all claims for bodily injury, death, or property damage arising from the Customer’s use of propane gas, including, but not limited to, any act or omission committed by Customer in its use of propane gas and any Customer Equipment.

4.    RATES AND CHARGES, DELIVERY PROGRAMS

(a)    Rates and Charges. Customer agrees to pay Company’s current rates and charges in effect at the time that fuel oil or propane gas is delivered or service is rendered by Company to Customer.  The price-per-gallon to be paid by Customer to Company for fuel oil or propane gas delivered to Customer is Company’s established retail price for Customer in effect on that delivery date. Company posts its price per gallon for fuel oil or propane gas on Company’s website.  In addition, the posted price per gallon for fuel oil or propane gas for each delivery is set forth on the metered delivery ticket or other invoice provided to Customer by Company at the time of delivery or by electronic means (if selected by the Customer in writing).  Subject to any notice required by applicable law, Company reserves the right to change rates and charges from time to time without other prior notice to Customer.

(b)    Optional Automatic Delivery Program. Company offers automatic delivery of fuel oil and propane gas. Company’s automatic delivery program is designed to predict and project when a customer is estimated to run low on heating fuel based on that customer’s historical fuel consumption, daily temperature data, and other relevant information.  However, because differing amounts of heating fuel may be used by Customer due to factors beyond Company’s awareness and control, and for which Company is not responsible, Customer must remain aware of its own unique use and consumption rates for heating fuel at all times.  If Customer elects to participate in Company’s automatic delivery program, then Company will use commercially reasonable efforts to deliver an adequate supply of fuel oil or propane gas when Company estimates that Customer’s heating fuel tank approaches the one quarter (1/4) full mark; provided, however, that CUSTOMER IS RESPONSIBLE TO MONITOR CUSTOMER’S ACTUAL USE AND CONSUMPTION OF FUEL OIL OR PROPANE GAS SO THAT CUSTOMER HAS AN ADEQUATE SUPPLY OF FUEL OIL OR PROPANE GAS AT ALL TIMES.  COMPANY DOES NOT  GUARANTEE THAT CUSTOMER WILL NEVER RUN OUT OF FUEL OIL OR PROPANE GAS.

(c)    Will Call Delivery. If Customer does not elect to participate in Company’s automatic delivery program, then Company will deliver fuel oil or propane gas on a “will call” basis. Under will call, Company does not track Customer’s historical purchases or consumption rates or predict when Customer needs fuel oil or propane gas. Instead, Company will only deliver fuel oil or propane gas upon Customer’s request. Customer is responsible for monitoring the fuel level in Customer’s propane gas and/or fuel oil tanks and ordering a fuel delivery when the tank gauge reads 30% full (between ¼ and ½ full for fuel oil tanks). Company requires reasonable prior notice for will call deliveries on Company’s regular weekday schedule without additional fees. If Customer runs out of fuel oil or propane, a delivery request for fuel oil or propane gas could result in a chargeable service call or additional fees.

(d)    Propane Meters. If Customer has a propane meter installed by Company in connection with any Propane Equipment, Company is permitted to bill Customer based on an estimated usage amount, and then later take an actual reading, after which: (i) Customer will receive a credit to the extent that Customer’s estimated billed usage amount exceeds the actual usage amount, or (ii) Customer will be charged an additional amount to the extent that the actual amount of propane used exceeds the estimated amount. 

(e)    Customer Contact and Payment Information.  Customer represents and warrants that the name, address, telephone number and other contact and payment information that Customer provides to Company are accurate, complete and current. Customer agrees to notify Company immediately if there is any change to any of that information.

(f)    Licenses, Permits and Taxes. Customer must pay all license, permit and inspection fees and all taxes (included tariffs) associated with the sale, installation or use of fuel oil, propane gas and related equipment supplied by Company (other than Company’s income tax obligations).

(g)    Delinquency, Disconnection. If any charge remains unpaid fifteen (15) days after the due date on the metered delivery ticket or other invoice provided by Company to Customer, then Company will place a delivery hold on Customer’s account notice for heating fuel deliveries.  If any charge remains unpaid thirty (30) days after the due date on the delivery ticket or other invoice provided by Company to Customer, then Company will revoke Customer’s ability to pay for heating fuel deliveries by charge and require Customer to pay cash on delivery.  If any charge remains unpaid forty-five (45) days after the due date on the delivery ticket or other invoice provided by Company to Customer, then Company may refuse, interrupt or disconnect service, except as may be prohibited by applicable law.   

5.    ACCESS TO CUSTOMER PROPERTY

(a)    Irrevocable Right.  Customer agrees that Company and its authorized representatives have an irrevocable right to enter onto Customer’s real property without prior notice to deliver fuel oil and/or propane gas, install, service (or remove) any Propane Equipment owned by Company in order to provide services (or remove Propane Equipment) that Company reasonably deems necessary. This right of access survives the termination or expiration of this Agreement for the limited purpose of enabling Company to retrieve any Propane Equipment. Customer must provide Company and its authorized representatives with safe and unimpeded access to Customer’s property, including:

(i)    Clear Driveways and Private Roads.  Customer’s driveway and any private roadway are cleared of snow, debris and other materials to a reasonable width (but in no event less than 12 feet or the greatest width possible if Customer’s driveway is not at least 12 feet wide) to accommodate access by Company delivery and service vehicles and personnel;

(ii)    Sufficient Pathways.  Customer has cleared a footpath from their driveway or private roadway that is of a reasonable width (but in no event less than 3 feet wide) of snow, debris, vehicles and other materials to enable access to equipment requiring service by Company personnel (or the greatest extent possible if Customer’s property is not at least 3 feet wide) and all gates are unlocked;

(iii)    Accessible Work Area.  Customer has cleared a path that is at least 3 feet wide (or to the greatest extent possible if Customer’s property is not at least 3 feet wide) of snow, debris, vehicles, enclosures, fences, trees, and other objects or materials to enable access to and around the Propane Equipment or fill pipe (or the underground tank for fuel oil tanks);

(iv)    Pets.  Customer has secured all pets and other animals at all times while Company personnel are on site at Customer’s property;

(v)    No Standing Water.  Customer has cleared all standing water from the area required to service Customer’s heating appliances, fuel storage tanks, piping, and other adjoining systems; and

(vi)    Condition of Driveway.  Customer’s driveway is safe and capable of supporting a fully-loaded heating fuel delivery truck weighing (approximately 18 tons or 36,000 pounds) especially during muddy seasons or after storms and wide enough to enable a delivery or service vehicle to execute reasonable and necessary turns to provide delivery or service;

(vii)    Bridges.  If Customer’s property must be accessed by a bridge, then Customer must ensure that the bridge is (i) structurally sound, and (ii) able to support the weight of a fully-loaded heating fuel delivery truck (approximately 18 tons or 36,000 pounds) as evidenced by a current inspection under the National Bridge Inspection Standards and any applicable state and municipal requirements with respect to posting notices on bridges for weight limits and other mandatory disclosures; 

(viii)    Hidden Features.  If Customer’s property contains septic tanks, leach fields, irrigation lines, utility cables, underground drainage ponds or other physical property features or sanitary hazards that are hidden or not readily visible, then Customer must either mark those features or advise Company in writing of those conditions; and

(ix)    Changes or Concerns.  If anything on Customer’s property changes in a manner that may adversely impact heating fuel deliveries or service (new fences, construction, driveway repairs, etc.), then Customer must promptly notify Company of those changed conditions or concerns.

(b)    Inability to Access; Damages.  If Company cannot safely access Customer’s property or the Propane Equipment, then it reserves the right to refuse delivery or performance of other services.  In those cases, Company is entitled to charge Customer a missed delivery or service fee.  Further, Customer may be held responsible for any damage due to any unmarked, undisclosed or otherwise unsafe condition.

6.    UNOCCUPIED OR VACANT PRIMARY RESIDENCE, RENTAL, SEASONAL OR VACATION PROPERTY.

(a)    Customer’s Sole Responsibility.  Customer is solely responsible for (i) monitoring the levels of heating fuel, the proper operation of their heating system, and temperature on Customer’s property on a daily basis; and (ii) notifying Company of any problem that arises with respect to those levels, operations or temperatures.  If all or any portion of Customer’s property (including, without limitation, seasonal homes, second homes, or vacation homes) is unoccupied or vacant at any time or for any period of time, Customer is responsible for monitoring and making arrangements for monitoring (e.g., by a third party or an alarm system) the levels of heating fuel, proper operation of the heating system, and temperature within Customer’s entire property at all times.  

(b)    No Change For Automatic Delivery.  If Customer is enrolled in Company’s automatic delivery program pursuant to Section 4(b) of this Agreement, CUSTOMER REMAINS SOLELY RESPONSIBLE TO NOTIFY COMPANY IF CUSTOMER’S TANK FILL PERCENTAGE FALLS BELOW 30%.

(c)    Limitation of Liability.  Customer acknowledges and agrees that the maintenance and operation of Customer’s heating systems, plumbing, water supply, etc.,  are Customer’s sole responsibility, including without limitation, daily monitoring of levels of fuel oil and propane to ensure that Customer’s property and any improvements on Customers property are temperature-controlled at all times. COMPANY IS NOT RESPONSIBLE FOR ANY LOSS, DAMAGE OR INJURY TO ANY PERSONAL OR REAL PROPERTY OF CUSTOMER OR ANY THIRD PARTY RESULTING FROM CUSTOMER RUNNING OUT OF HEATING FUEL OR THE FAILURE OF ANY HEATING SYSTEM IN ANY PROPERTY THAT THE CUSTOMER HAS FAILED TO PROPERLY MONITOR, OR HAS LEFT UNOCCUPIED OR VACANT FOR ANY PERIOD OF TIME, INCLUDING, WITHOUT LIMITATION, FROZEN PIPES, FAILURE OF WATER TO DRAIN OR WATER DAMAGE FROM RESULTING PLUMBING FAILURES.

(d)    Customer-owned Monitors.  Company strongly recommends that Customer places appropriate monitoring devices on Customer’s heating system to monitor the amount of propane gas or fuel oil remaining in Customer’s tank.  Customer must provide Company with reasonable prior notice of a need for delivery in order to avoid the exhaustion of Customer’s propane gas or fuel oil supplies.  

7.    EMERGENCY SPILL RESPONSE.

(a)    Immediate Action. If a spill or suspected release of propane gas or heating oil occurs during delivery, both Company personnel and Customer must take immediate steps to protect life, health, and property, including evacuation if necessary.

(b)    Notification by Customer. Customer must notify Company and, if safety is threatened, emergency services (by dialing 911), immediately upon discovery or suspicion of a spill or leak.

(c)    Containment and Reporting. Company will act promptly to contain and mitigate any release of propane gas or heating oil in accordance with applicable law and environmental regulations. Company will communicate all reportable spills to the appropriate authorities as required by state and federal law.

(d)    Cleanup.  Company will coordinate appropriate cleanup actions for spills or releases of propane gas or heating oil that occur as a direct result of its negligence, in accordance with applicable regulatory requirements. Customer is responsible for cleanup and related damages for spills or releases resulting from conditions at their property under their control (e.g., from faulty tanks, piping, etc.)

(e)    Costs.  The responsible Party bears the costs associated with response, remediation, reporting, and regulatory fines or penalties, except and to the extent that those costs are attributable to the other Party’s negligence or willful misconduct.

8.    TERM AND TERMINATION

(a)    Term.  The term of this Agreement begins on the Effective Date and, subject to Section 8(b) below, continues in force for a period of three (3) years (the “Initial Term”).  Upon expiration of the Initial Term, this Agreement automatically renews for an unlimited number of one-year periods (each, a “Renewal Term”), absent written notice of cancellation by either Party no less than thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term.  The Initial Term and the Renewal Term(s) (if any) are collectively the “Term.”)

(b)    Termination.  Either Party may terminate this Agreement at any time for default if the other Party fails to meet any of the material terms and conditions of this Agreement and fails to cure that default within a reasonable period of time after that failure, but not more than thirty (30) days.   If Customer’s account with Company is terminated for any reason, then (i) Company is no longer responsible for providing service of any kind to Customer; and (ii) Customer remains responsible for all amounts owed to Company for deliveries made and services provided prior to the termination date.  If Customer is under a service plan provided by Company at the time Company terminates this Agreement for Customer’s default, then those service plans are neither totally nor partially refundable once Customer’s account is terminated.

(c)    Surrender of Propane Equipment.  Customer must promptly surrender to Company all Propane Equipment provided by Company upon termination of this Agreement or Customer’s account for any reason.

(d)    Propane Gas Return on Termination. Company may refund 50% of the retail value of propane gas remaining in any Propane Equipment removed from the Customer’s property upon termination; provided, however, that (i) Company will not refund the value of any propane gas remaining in containers of 50 gallons or smaller and that propane gas is deemed surrendered by Customer; (ii) Company will not refund the value of any propane gas remaining in containers if and to the extent that Customer has any unpaid balance on its account with Company; and (iii) none of the foregoing provisions apply if and to the extent prohibited by applicable law.

(e)    Residual Fuel Oil on Termination.  Customer owns and retains possession of any heating fuel in Customer-owned tanks and delivered to Customer by Company, so long as Customer has paid Company for that heating fuel delivery on or before the termination date.

9.    WARRANTY DISCLAIMER, LIMITATION OF LIABILITY, INDEMNIFICATION, RELEASE AND INSURANCE

(a)    Disclaimer of Warranties.  Company makes no representations or warranties, either express or implied, with respect to any propane gas, fuel oil, Propane Equipment or other product or equipment sold or services provided under this Agreement or any prior agreement or understanding between the Parties, including, without limitation, any warranties of merchantability or fitness for a particular purpose.  Except where prohibited by applicable law, all products, services and equipment sold or provided by Company to Customer are sold or provided “as is.”  

(b)    Limitation of Liability.  Company is not liable to Customer for any amount of damages that exceeds the aggregate amount paid by Customer to Company during the thirty (30) days immediately preceding the event that triggered the liability for those damages; provided, however, that (i) the limitation on liability stated above does not apply to direct damages proximately caused by Company’s gross negligence or willful misconduct at the time of fuel oil or propane delivery or equipment service and promptly reported by Customer after the Customer learns of those damages or five (5) business days after the delivery or service allegedly giving rise to those damages, whichever occurs first; and (ii) in no event is Company liable for any indirect, incidental, consequential, special, exemplary or punitive damages arising out of or related in any way to, delivery of Propane Equipment, propane, or fuel oil, or any other services provided under this Agreement.

(c)    Indemnification.  Customer will indemnify and hold Company harmless from any claims by third parties related to any delivery or service provided under this Agreement except those claims arising from Company’s gross negligence or willful misconduct.  

(d)    Release and Indemnification from Hazardous Substance Liability.  As used in this Section 9(c), “Hazardous Substances” means any substance or substances that at any time are listed as “hazardous” or “toxic” under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. § 9601 et seq. as amended, and also includes, without limitation, liquefied petroleum gas (including propane gas and any additives thereto), petroleum products or byproducts and constituents and any other material or substance termed “hazardous” under any other federal, state or local law, rule, regulation or ordinance.  To the full extent allowed by applicable law, Customer hereby releases Company from any and all claims, demands, obligations, causes of action and liabilities arising out of or in any way related to the presence of Hazardous Substances on, in, or under the property where the Company products are delivered (the “Property”), regardless of how or when those Hazardous Substances came to be located in, on, or under the Property.  Customer agree to protect, defend, indemnify and hold Company harmless from and against any and all claims, demands, losses, liabilities, penalties, fines and any other costs and expenses (including attorneys’ fees) that arise out of or in any way are connected to the presence of Hazardous Substances on, in or under the Property, regardless of how or when such Hazardous Substances came to be located on, in or under the Property.  

(e)    Insurance.  Company and Customer must each look to its own insurance for recovery of any loss attributable to its obligations under this Agreement and each hereby: (i) releases the other Party from those claims; and (ii) waives any right of recovery of insured claims by anyone claiming through them, by way of subrogation or otherwise, including their respective insurers.

10.    RESOLUTION OF DISPUTES: ARBITRATION AGREEMENT

(a)    Binding Arbitration.  Upon the election of either Party, a Dispute must be resolved by binding arbitration. As used in this Section 10, a “Dispute" means any claim or controversy arising  from or relating to this Agreement, or the relationship between Customer and Company, including without limitation any and all: (1) claims for relief or theories of liability, whether based in contract, tort, statute, or otherwise; (2) claims against Company or its parents, subsidiaries, affiliates,  predecessors, successors, or assigns and any of their directors, officers, employees, and agents (any of whom may elect arbitration of claims to which they are a party pursuant to this Agreement); (3) claims that arose before this Agreement; (4) claims that arise after the expiration or termination of this Agreement; and (5) claims that are the subject of a purported class action or other representative or collective action. “Dispute" does not, however, include claims properly filed by Customer or Company on an individual basis in small claims court of Customer’s state or municipality if the amount claimed is within the jurisdiction of that court and the claim is pending only in that court. IF THE PARTIES HAVE ANY DISAGREEMENT ABOUT ARBITRABILITY OR THE VALIDITY, SCOPE, OR ENFORCEABILITY OF THIS AGREEMENT, A DULY APPOINTED ARBITRATOR WILL DECIDE THAT DISAGREEMENT.

(b)    Right to Reject Arbitration. Notwithstanding anything in this Agreement to the contrary, Customer may reject the arbitration requirements of this Section 10 by sending Company written notice of that rejection by mail postmarked no later than thirty (30) days after Customer’s acceptance of this Agreement to: Dead River Company, LLC, 82 Running Hill Road, Suite 400, South Portland, ME 04106. Customer’s rejection notice must be signed, must state that Customer rejects this arbitration provision, and must include Customer’s name, address, and Company account number. Customer’s decision to reject this arbitration provision or seek remedies in small claims court does not adversely affect Customer’s relationship with or receipt of goods or services from Company.

(c)    Procedures for Arbitration. This arbitration requirements of this Section 10 are governed by the Federal Arbitration Act ("FAA"). Arbitrations must be conducted by a single arbitrator and administered by JAMS ("JAMS") pursuant to the code of procedures in effect at the time the arbitration is initiated, copies of which may be found at https://www.jamsadr.com (the “JAMS Rules").  At Customer’s election, arbitration hearings will take place in Customer’s hometown area. During the arbitration, the Parties will be allowed to engage in discovery or exchange of non-privileged information relevant to the dispute. The arbitrator's decision will consist of a written statement stating the disposition of each claim. The award will also provide a concise written statement of the essential findings and conclusions on which the award is based. The arbitrator's decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator's award.

(d)    Right to Attorneys' Fees and Costs. Customer may hire an attorney to represent them. Customer is responsible for Customer’s attorneys' fees and costs. Customer may recover those attorneys' fees and costs from Company in arbitration to the same extent as in court, or as permitted under the JAMS Rules. When Customer initiates arbitration proceedings, Customer is responsible for paying Customer’s share of the arbitration fees as set forth in JAMS' Arbitration Schedule of Fees and Costs in effect at the time the arbitration is initiated. Company will be responsible for any additional arbitration fees and costs.

(e)    Waiver of Jury Trials and Class Actions. IN ARBITRATION, DISPUTES ARE RESOLVED BY AN ARBITRATOR RATHER THAN A JUDGE OR JURY. ACCORDINGLY, CUSTOMER AND Company EACH HEREBY WAIVES THE RIGHT TO PROSECUTE OR PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, OR OTHER REPRESENTATIVE ACTION. UNLESS CUSTOMER AND Company AGREE OTHERWISE IN WRITING, THERE IS NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED ON A CLASS ACTION, MASS ACTION, OR COLLECTIVE BASIS, AND REGARDLESS OF ANY INCONSISTENT PROVISIONS IN THE JAMS RULES, NEITHER THE ARBITRATOR NOR THE JUDGE MAY CONSOLIDATE MORE THAN ONE PERSON'S CLAIMS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF TO THAT INDIVIDUAL PARTY. THIS CLASS, MASS, REPRESENTATIVE, AND COLLECTIVE ACTION WAIVER IS A MATERIAL AND ESSENTIAL PART OF AND CANNOT BE SEVERED FROM THE ARBITRATION PROVISIONS OF THIS SECTION 10.

11.    MISCELLANEOUS PROVISIONS

(a)    Customer Consent to Being Contacted.  By providing an e-mail address,  telephone number, or mobile phone number now or in the future, Customer agrees that Company (and others on its behalf) may contact Customer via automated means, including with an automatic telephone dialing system or prerecorded or artificial voice.  Those emails, calls, or text messages may include, without limitation, delivery reminders, delivery confirmations, service appointment reminders, past due account notices, account notifications and attempts to collect debts from Customer.  Customer’s consent to receive communications from Company by e-mail, telephone or mobile phone is not a condition of receiving any goods or services.  Message and data rates may apply.  To opt out of receiving automated messages and calls, Customer may reply “STOP” to any text message, call Company’s local office (available at www.deadriver.com/contact-us) or main number at 207-358-5800, or update Customer’s preferences on their My Account portal.

(b)    Notice. All notices provided for or permitted under this Agreement must be in writing and sent to the recipient’s address by nationally recognized overnight courier or US First Class Mail. For Company, notices must be sent to: Dead River Company, LLC, 82 Running Hill Road, Suite 400, South Portland, ME 04106.  For Customer, unless otherwise advised in writing, notices must be sent to the address where service is delivered.  Notice delivered by overnight courier is deemed effective as of the date of delivery or refusal. Notice sent via US First Class Mail is deemed to be effective five (5) days after the date of mailing.  FOR EMERGENCIES OR MATTERS REQUIRING IMMEDIATE ATTENTION, CUSTOMER SHOULD CONTACT THEIR LOCAL COMPANY OFFICE BY TELEPHONE.

(c)    Assignment. Customer cannot assign this Agreement or any of Customer’s rights or obligations hereunder without the prior written consent of Company, which consent may be withheld in Company’s sole discretion.

(d)    Force Majeure.  Company is not liable if prevented from performing any of its obligations under this Agreement due to causes beyond its reasonable control including, but not limited to, acts of God or government, fires, floods, droughts, snow emergencies, earthquakes, wars, acts of terrorism, riots, labor disputes, delays in transportation, embargoes, pandemics, or shortages of product.

(e)    Entire Agreement. This Agreement supersedes all prior and contemporaneous communications, understandings and other agreements, written or verbal, between Company and Customer with respect to its subject matter. 

(f)    Amendment or Modification by Customer. This Agreement cannot be modified or amended by Customer unless that modification or amendment is submitted in writing to, and accepted in writing by, an authorized representative of Company.

(g)    Amendment or Modification by Company. Company may modify this Agreement at any time by posting updated terms and conditions on Company’s website (www.deadriver.com/terms). Customer’s continued acceptance of deliveries or services constitutes Customer’s acceptance of the modified Agreement. Please refer to Company’s website (www.deadriver.com/terms) or contact Company’s local office to obtain an updated version of this Agreement.  

(h)    Governing Law.  This Agreement is governed by the laws of the State of Maine without reference to its conflicts of law provisions. 

(i)    No Third Party Beneficiaries.  The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing in this Agreement, whether express or implied, confers upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.

(j)    Severability.  If any part of this Agreement is held to be unenforceable, then its remaining terms continue in full force and effect.

(k)    No Waiver. No waiver under this Agreement is valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of that waiver is sought.  Any waiver constitutes a waiver only with respect to the specific matter described in that waiver and will in no way impair the rights of the Party granting that waiver in any other respect or at any other time.  Any delay or forbearance by either Party in exercising any right under is not a waiver of that right.

Updated October 2026