Stream Energy Maryland, LLC, Maryland PSC License IR-2742 Terms and Conditio ions for Resid idential and Small Bus usin iness Natural Gas Supply Servic ice Version 5; Effectiv ive Date: RELEASE DATE This document sets forth the terms and conditions that apply to Customer s purchase of natural gas supply service from Stream Energy Maryland, LLC ( Stream ) for residential or small business natural gas services, as applicable. The terms includes or including shall mean including without limitation. For purposes of this Agreement, the term Customer shall mean: for residential service, the person whose name appears on the bill for service under this Agreement, or that person s spouse, or an authorized agent thereof; for small business service, the person or entity whose name appears on the bill for service under this Agreement, or that person s spouse, or an authorized agent thereof. The provisions in this agreement are intended to apply generally to both residential and small commercial customers except where the language explicitly provides otherwise. Background Stream is licensed by the Maryland Public Service Commission (PSC) to offer and supply natural gas, and related services, in Maryland. Our PSC license number is IR-2742. We set the natural gas commodity prices and charges that Customer pays. The PSC regulates distribution/delivery prices and services. The Federal Energy Regulatory Commission regulates transmission prices and services. Definitions Small Commercial Customer A nonresidential customer that has annual usage of less than 20,000 therms during the most recent consecutive 12 month period. Local Distribution Utility (LDU) A gas or electric corporation owning, operating or managing electric or gas facilities for the purpose of distributing gas or electricity to end users. Commodity Charge Charge for the supply of natural gas. Public Service Commission (PSC) The Maryland Public Service Commission Transmission Charge Charge for moving natural gas from a supply point to the distribution system of a natural gas distribution company. 1. Contact Information. Stream: Residential Customers: Toll Free: 1-877-369-8150; between 8 a.m. to 9 p.m. Monday to Friday, Saturday to Sunday 9 a.m. to 6 p.m. EST, excluding holidays Commercial Customers: Toll Free: 1-877-369-8150; between 9 a.m. to 5 p.m. Monday to Friday, EST, excluding holidays For certified mail or any other items requiring signature, the following address shall apply: Stream, 14675 Dallas Parkway,, Suite 150,, Dallas, Texas 75254 54. For any informal notices to Stream pursuant to this Agreement, the following mailing address shall apply: Stream Maryland, Attn: Customer Operations, P.O. Box 1376, Baltimore, Maryland 21203-1376 1376. It is Customer s sole responsibility at all times to provide to Stream--at the address listed in this paragraph--with a valid mailing address to receive invoice(s) and notices under this Agreement and as required by any applicable state or federal law. 2. Purchase of Natural Gas Supply from Stream and Term. Stream will supply Customer natural gas as delivered by Customer s Natural Gas Utility (NGU) under the product identified by Customer during the enrollment. The Product Type (i.e., Fixed vs. Variable), and the Term (i.e., length of the Agreement), shall be the type and term selected by Customer during the enrollment. Service from Stream will begin after Customer s Utility has switched Customer s account to us, and in accordance with market protocols and rules governing the timing of switching Customer s utility account. Service with Stream will continue for the selected term or until either Customer or Stream cancels service under this agreement as provided in the Cancellation Provisions; Early Cancellation Penalties Section below. Customer shall not resell natural gas to any third party. Please also note that Customer may incur early cancellation penalties under a current supplier contract. 3. Moving/Relocation. Customer should notify both the NGU and Stream of a change in Customer residence/service location at least thirty (30) days before such change. A final meter read will be made at Customer s old address and Customer s account will be finalized. Customer agrees that Stream does not have control over, and shall not be responsible for, any delay, failure or inability by any other entity that is responsible for performing actions necessary to discontinue service in Customer s name. Customer agrees to remain responsible for all Stream charges incurred while the Agreement is in effect. 4. Price per Therm. Residential Customers: Customer has selected and a agreed to a <<RateProduct>>plan at a current rate of <<CurrentRate>> per therm with an Early Cancellation Fee of <<CancelFee>>. Small Commercial Customers: : See attached cover sheet for plan,, rate, and terms of ECF. Customer agrees to pay the Price per Therm that Customer agreed to during the enrollment. The Price per Therm provided by Stream for both Fixed and Variable rate plans is the price published for the effective date of this Agreement to Stream s website at www.mystream.com, and which was confirmed to the Customer for that specific product or plan at time of the enrollment and is included in Customer s Welcome Package. The price includes the commodity 1
charge and transmission charge. The price does not include applicable Maryland sales tax, use tax, local tax or gross receipt taxes imposed by Maryland State Tax Law. Customer is responsible for any and all taxes (whether passed through to Customer on LDU s bill as a separate line item or as part of the price of natural gas, as required by law, rule or regulation) and LDU charges for delivery and distribution services. Except as otherwise provided in this Agreement or as required by law, all taxes of whatsoever kind, nature and description, due and payable with respect to Customer performance of Customer obligations under this Agreement, will be paid by Customer. If Customer is a tax exempt entity, Customer must provide Stream with all necessary documents to qualify for such status. 5. Changes in Price. Variable Price Plan. While this Agreement is in effect, the price for the Variable Price Plan -- including the price if Customer s plan or product defaults to a month-to-month variable rate at the end of any fixed rate term -- may fluctuate and is subject to change at the sole discretion of Stream based upon the fluctuation of wholesale natural gas prices or other inputs to wholesale prices such as current and predicted weather patterns, competitive pricing, transmission and/or distribution constraints, wholesale commodity costs, fluctuations in energy supply and demand, and Stream s pricing strategies and anticipated margins. No limit is imposed on fluctuation of variable pricing. Residential Customers Only: Customers who enroll or default to the Variable Price Plan may monitor rates for the Variable Price Plan on a daily basis by visiting www.mystream.com/rates/maryland, or by calling Stream Customer Care. 6. Cancellation Provisions; Early Cancellation Penalties: Variable Price Plan: Customers on a Variable Price plan may cancel this Agreement at any time without penalty by completing a switch to another supplier or back to the utility. Customer s obligations under the Agreement will end when the outstanding balance on Customer s account is paid in full. Fixed Rate Term Plan: Customers on a Fixed Rate Term Plan may cancel the Agreement at any time by completing a switch to another supplier or back to the utility. Customer s obligations under the Agreement will end when the outstanding balance on Customer s account is paid in full. Stream may bill Customer directly for any ECFs. If the Customer owes any prior ECF or other outstanding balance to Stream at the time of enrollment for service under this Agreement, Stream reserves the right to require full payment of the outstanding balance or ECF prior to initiation of service under this Agreement and may refuse service until all amounts are paid in full. Stream may cancel this Agreement at any time for fraud, theft, or misrepresentation by Customer. In addition, Stream may cancel this Agreement at any time for its convenience with advance written notice to Customer of at least forty-five (45) days, and Customer may then switch to another supplier without penalty. Upon cancellation by either Customer or Stream, Customer will be responsible for all Stream charges incurred hereunder until Customer s account is transferred to another natural gas supplier. For Residential Customers Only nly: If the Customer cancels the Agreement thirty (30) or more days prior to the end of the term of the Agreement, an Early Cancellation Fee (ECF) of <<CancelFee>> shall be due. In the event that Customer is cancelling this Agreement because Customer is moving to a new premise, then ECF shall NOT apply. Small Commercial Customers Only: Please see attached cover sheet for ECF terms. 7. Right of Rescission. Customer may rescind this Agreement without penalty at any time before midnight of the third federal business day after receiving this Agreement. Please include: a statement requesting rescission; name, address and phone number(s); and account number. To rescind, Customer must contact Stream with this information by midnight of the third federal business day: Phone at 1-877-369-8150. 8. Renewal. For Customers on a Fixed Rate Term Plan, the agreement will automatically renew as set forth in this paragraph. We will send Customer a notice of the pending auto-renewal at least thirty (30) days before the renewal is scheduled to occur. The notice will include: (1) any changes to the material terms and conditions of this agreement and will provide that the agreement will renew to a month-to-month variable rate. (2) information on how Customer can terminate the contract without penalty, and (3) a statement that terminating the agreement without selecting another supplier will return Customer to Customer s local utility's commodity service. 9. Billing, Invoices and Payment. Customer will continue to receive one bill from Customer s Utility for each billing cycle. The cost of Customer s natural gas supply from Stream will be included on Customer s bill from the Utility. It will be due and payable when Customer s Utility bill is due at the billing address provided in Customer s Utility bill. Should the Utility cease billing Customer and/or commence billing us for any charges relating to Customer, we will bill to Customer and Customer will pay us for all charges billed. Customer will also be billed additional charges, including taxes and charges to transmit and distribute natural gas to Customer s home from the Utility (consistent with its tariffs). Customer is responsible for paying any new or increased taxes, assessments, and the like imposed on us or Customer during the term of this contract. For consolidated billing, Customer acknowledges that Customer s billing and payment information may be provided to us as Customer s supplier. You agree to pay the price as defined in your Agreement and all amounts shown on your bill that are charged by Stream consistent with this Agreement. By paying your bill you agree that the bill reflects proper charges for our services. 2
10. Budget Billing Plan (For ( Residential Customers Only). Upon request, Stream will enroll Customer s account in Budget Billing, so long as Customer s account is not delinquent. Budget Billing consists of a level monthly payment plan based on Customer s estimated monthly usage, which is determined by reviewing Customer s past twelve billing cycles or the historical usage data for the premise, and Customer s rate structure. Every twelfth billing cycle, Stream will review Customer s account, reconcile Customer s Budget Billing option and determine Customer s new monthly payment for the year ahead; any credit or unpaid balance will appear on Customer s next invoice. Stream may periodically review Customer s account to ensure the variance between the Budget Billing amount due in relation to the actual account balance does not have a substantial variance. If the variance becomes too large either as a debit or credit to Customer, the Budget Billing amount may be adjusted and any credit or unpaid balance will appear on Customer s next invoice. Budget Billing will be cancelled upon Customer s request or if Customer s account becomes past due or terminated. If Budget Billing is cancelled, Customer s account will be automatically reconciled and any credit or unpaid balance will appear on Customer s next invoice. 11. Cancellation of Agreement for Non-Payment Payment. For Fixed Rate Plan Customers: Cancellation could be deemed an early cancellation of Customer s contractual obligations triggering an Early Cancellation Fee (ECF). 12. Discrimination. Stream does not discriminate, deny service, or require prepayment or a deposit for service based on a customer's race, creed, color, national origin, ancestry, sex, marital status, lawful source of income, level of income, sexual orientation, disability, familial status, location of customer in an economically distressed geographic area or qualification for low income or energy efficiency services. 13. Disputes or Complaints. If Customer has a comment, question or dispute concerning any matter arising under this Agreement, or any dispute with the Agreement itself, please contact Stream using the contact information set forth herein. 14. Limitations of Liability. Customer will be deemed to be in exclusive control (and responsible for any damages or injury caused thereby) of the natural gas after receipt at the delivery point(s). STREAM WILL NOT BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES), WHETHER BY STATUTE, IN CONTRACT OR TORT, EVEN IF THE RESULT OF NEGLIGENCE (WHETHER SOLE, JOINT, CONCURRENT, ACTIVE OR PASSIVE). ALL OTHER LIABILITY WILL BE LIMITED TO DIRECT ACTUAL DAMAGES ONLY, AND SUCH DIRECT ACTUAL DAMAGES WILL BE THE SOLE AND EXCLUSIVE REMEDY. CUSTOMER HEREBY WAIVES ALL OTHER REMEDIES AT LAW OR IN EQUITY. THERE ARE NO THIRD PARTY BENEFICIARIES TO THIS AGREEMENT. To the extent any damages required to be paid hereunder are liquidated, the parties acknowledge that the damages are not intended and shall not be construed as a penalty, such damages are difficult or impossible to determine, that otherwise obtaining an adequate remedy is inconvenient or impossible, and that the liquidated damages constitute a reasonable approximation of the harm or loss. 15. Representations and Warranties. STREAM MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH REGARD TO THE PROVISION OF NATURAL GAS SERVICE AND DISCLAIMS ANY AND ALL WARRANTIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. 16. Assignment. Customer may not assign this Agreement, in whole or in part, or any of its rights or obligations hereunder without the prior written consent of Stream. Notice of an assignment by Customer to Stream, whether actual or constructive, shall not be deemed as complying with this section. Any assignment made without the prior written consent of Stream shall be null and void and not be binding upon Stream, and Customer shall remain responsible for all charges. Stream may, without Customer s consent: (i) transfer, sell, pledge, encumber or assign this Agreement or the accounts, revenues or proceeds hereof in connection with any financing or other financial arrangement; (ii) transfer or assign this Agreement to an affiliate of Stream; (iii) transfer or assign this Agreement to any person or entity succeeding to all or substantially all of the assets of Stream; and/or (iv) transfer or assign this Agreement to a certified natural gas supplier. In the case of (ii), (iii) or (iv), any such assignee shall agree in writing to be bound by the terms and conditions hereof. Upon any such assignment by Stream, Customer agrees that Stream shall have no further obligations. 17. Title, Risk of Loss and Indemnity. Customer acknowledges that Stream does not have care, control or custody of Customer's property or premises, or of any natural gas facilities, including, but not limited to pipes or the meter, located on or near Customer's property or premises. Customer further acknowledges that Customer is in exclusive control (and responsible for any damages or injury caused thereby) of natural gas at and from such meter. Title to natural gas and risk of loss related to natural gas shall transfer from Stream to Customer at respective meter/or Service Address. CUSTOMER SHALL INDEMNIFY, DEFEND, AND HOLD STREAM HARMLESS FROM ANY CLAIMS, INCLUDING CLAIMS FOR PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND ATTORNEY'S FEES, ARISING FROM ANY ACT OR INCIDENT OCCURRING WHEN TITLE TO NATURAL GAS SERVICE IS DEEMED TO BE IN THE EXCLUSIVE CONTROL OF THE CUSTOMER, DESPITE OUR NEGLIGENCE OR STRICT LIABILITY. 3
18. Waiver. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. Failure of either party to exercise any right hereunder shall not constitute a waiver hereunder and shall not impair the exercise of such rights at any later time. 19. Governing Law. THE TERMS AND CONDITIONS ARE MADE UNDER AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF MARYLAND, EXCLUSIVE OF ANY CONFLICT OF LAWS PROVISIONS THEREOF THAT WOULD APPLY THE LAWS OF ANOTHER JURISDICTION. EXCEPT AS OTHERWISE PROVIDED IN THE TERMS AND CONDITIONS, THE MARYLAND UNIFORM COMMERCIAL CODE ( UCC ) SHALL APPLY TO THE TERMS AND CONDITIONS AND NATURAL GAS SHALL BE CONSIDERED A GOOD (AND NOT A SERVICE ) FOR PURPOSES OF THE UCC. 20. Complete Agreement. Customer s contract with Stream ( Agreement as defined herein) contains the complete understanding between Stream and the Customer and supersedes all other written or oral communications and representations. Any modifications made to this Agreement following negotiations between Customer and Stream may only take effect if reduced to a separate type-written agreement approved by Stream s Contract Administrator, including this provision. No sales agent or any other representative has any binding authority to modify this Agreement and any such changes shall not be binding on Stream. Customer agrees not to make any changes to this Agreement and agrees that any of the aforementioned unapproved modifications shall not be binding on Stream even if Stream receives any of the aforementioned modifications and processes them. In that instance, the sole and exclusive remedy available to Customer shall be to cancel the Agreement without penalty and Customer shall remain responsible for all charges incurred prior to cancellation; provided, however, the charges and terms that shall apply shall be those that would have applied had the Agreement not been modified. 21. Miscellaneous Fees & Charges. Customers may be required to pay a fee to third-party vendors for bill payment transaction. Fees vary depending upon payment type and vendor. Please check with the vendor for applicable fees before posting payment. In the event that Stream must bill Customer pursuant to the Billing, Invoices and Payment Section of the Agreement, or to collect an ECF, and Customer defaults in the payment due under this Agreement, such indebtedness may be placed in the hands of an attorney or collection agent for collection, and suit may be brought on same, or they may be collected through probate, bankruptcy or other judicial proceedings. In such an event, Customer agrees to pay reasonable fees and expenses (including attorney fees) incurred by Stream or the attorney/collection agent in the collection of such indebtedness. 22. Customer Information Release Authorization: By entering into this Agreement, Customer agrees that Customer s Utility may release to us certain information that we need to provide service to Customer, including Customer s address, telephone number, account numbers, historical usage information and peak demand. We will not give or sell Customer s personal information to any unaffiliated party without Customer s consent unless we are required to do so by law or it is necessary to enforce this Agreement. 23. Agreement to Arbitrate and No Class Actions: READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND ALSO LIMITS THE MANNER IN WHICH CUSTOMER CAN SEEK RELIEF FROM STREAM. CUSTOMER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND STREAM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY AND/OR TO PARTICIPATE IN A CLASS ACTION. ALL CLAIMS MUST BE BROUGHT IN THE PARTIES INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON S CLAIMS. CUSTOMER AGREES THAT, BY ENTERING INTO THIS AGREEMENT, CUSTOMER AND STREAM ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND. Stream and Customer agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising or marketing); claims that are currently the subject of purported class action litigation in which Customer is not a member of a certified class; and claims that may arise after the termination of this Agreement. The parties agree that the arbitrator will have the sole power to decide any question about the arbitrability of any claim, dispute, or other difference between the parties. The arbitrator may award declaratory relief, preliminary and permanent injunctive relief, 4
and economic damages. The arbitrator will not have the authority to award attorney s fees, costs, or non-economic, consequential, punitive, exemplary or incidental damages, or lost profits. Each party will bear the expense of its own attorney s fees and costs. The decision of the arbitrator will be entitled to enforcement in any court of competent jurisdiction. This provision will not be construed so as to prohibit Stream from obtaining preliminary and permanent injunctive relief in any court of competent jurisdiction. In the event any portion of this provision regarding arbitration is found unenforceable, such portion shall be severable from the remainder of this provision, which shall remain in full force and effect. References to Stream, Customer, and us include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior Agreements between us. This arbitration agreement does not preclude Customer from bringing issues to the attention of federal, state, or local agencies. The parties agree that the Federal Arbitration Act will govern the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ( Notice ). The Notice to Stream should be addressed to: Stream, 14675 Dallas Parkway, Suite 150, Dallas, Texas 75254: Attn: General Counsel ( Notice Address ). The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ( Demand ). If Stream and Customer do not reach an agreement to resolve the claim within 30 days after the Notice is received, Customer or Stream may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Stream or Customer shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which Customer or Stream is entitled. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, AAA Rules ) of the American Arbitration Association ( AAA ), as modified by this Agreement, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide. Unless Stream and Customer agree otherwise, or unless otherwise prohibited by law, any arbitration hearings will take place in Dallas County, Texas. If arbitration in Dallas County, Texas is prohibited by law, then arbitration shall take place in Baltimore, Maryland. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party s individual claim. [End of Agreement] [Remainder of Page Intentionally Left Blank] 5