YOU SHOULD READ CAREFULLY THE FOLLOWING TERMS AND CONDITIONS (“TERMS”) BEFORE PURCHASING HVAC AND/OR HEATING OIL FROM BURNS & MCBRIDE, INC. THESE TERMS AFFECT YOUR LEGAL RIGHTS BY, AMONG OTHER THINGS, ESTABLISHING LIMITATIONS ON OUR LIABILITY AND CHARGING YOU AN EARLY TERMINATION FEE. THESE TERMS BECOME EFFECTIVE, AND YOU ACCEPT AND AGREE TO THESE TERMS, BY EITHER RECEIVING OR PAYING FOR OIL USING YOUR ACCOUNT OR BY NOT CLOSING YOUR ACCOUNT WITHIN THIRTY DAYS OF RECEIPT OF THESE TERMS AND CONDITIONS.

Thank you for choosing to purchase your HVAC and/or heating oil requirements from Burns & McBride, Inc. (“we”, “us”, “our”, “Burns & McBride” or the “Company”). You the customer are referred to in these Terms as “you” “your” or “customer”.

Please call us at (302) 656-5110 to talk to one of our customer service representatives about our various services or go to our Internet web site, www.burnsandmcbride.com to see the latest information on our products and services.

The following Terms are the agreement between you and the Company and govern your purchases of heating oil and/or HVAC services from the Company.

TERM

If you are a new Burns & McBride customer, these Terms begin for you on the date you enroll with us for services.

If you are an existing Burns & McBride heating oil delivery and/or HVAC customer, these Terms begin for you effective August 1, 2017.

These Terms remain in effect until we issue revised Terms to you. Any revised Terms we issue to you will take effect on the next August 1 after their issuance to you, provided that we may make nonmaterial changes in the Terms at any time upon 30 days prior notice to you.  If you continue to purchase heating oil and/or HVAC services from us after receipt of any revised Terms, you will be deemed to have accepted them.

FUEL DELIVERY OPTIONS

AUTOMATIC DELIVERY. For automatic delivery customers, Burns & McBride determines your schedule of oil deliveries. Our goal is to deliver fuel to you no later than when the level of oil in your tank reaches approximately 30% of its total capacity. We estimate your oil use based on your past consumption history with us. For new automatic delivery customers, we estimate your oil consumption by using typical residential consumption rates of 600 to 700 gallons of oil per year. If your home uses more than this typical amount, or if you at any time make a change in lifestyle or other modification that affects your home’s oil consumption, please notify our office so that we can adjust our delivery records. In the unlikely event that your tank runs out of oil prior to delivery, call our customer service office at (302) 656-5110 to report the fuel outage. Once YOU ENROLL IN OUR AUTOMATIC DELIVERY PROGRAM, we will maintain your account on an automatic delivery basis until we or you notify the other in writing to stop automatic deliveries.

Customer initiated deliveries of less than 150 gallons are subject to an additional delivery fee.

You agree that outages resulting from past due account balances, a change in your rate of consumption of fuel per degree day from your prior deliveries, your storage tank and/or venting problems, incorrect usage information supplied by you, or your account being placed on call-in delivery status are not the responsibility of Burns & McBride. We will bill you for service charges resulting from these types of situations at our normal rates for service calls.

CALL-IN DELIVERY. If you do not enroll in automatic delivery, or if you prefer to call us to schedule your heating oil deliveries, we accept orders on an “as available” basis with a minimum delivery quantity of 150 gallons, or an additional delivery fee will apply.  Your price per gallon for call-in deliveries will be at the variable rate then in effect but shall be no less than the variable rate price per gallon for automatic delivery customers.

PRICE PLANS

Price Protection Plan. At any time you may choose to enroll in our then current price protection plan (“Plan”) for future heating oil purchases.  Our price protection plan includes a maximum gross retail price per gallon for the number of gallons of heating oil selected during the effective dates of the program. You may enroll in a Plan upon your payment of an enrollment fee for each gallon of oil you choose to protect.

Once you enroll in our Plan, there are no refunds or credits on your enrollment fee if you fail to use all gallons covered under the Plan, or if your account is canceled prior to the Plan’s expiration date.  All gallons delivered to the account during effective period of the Plan shall be applied against the account’s available balance of price protected gallons. If you choose to purchase more than one batch of price protected gallons for the same account, then all gallons delivered are applied to the first batch purchased – until that batch has been exhausted – then to subsequent batches. Once all price protected gallons have been delivered, subsequent deliveries will be made at our then prevailing variable rate.

Expiration of your price protection does not automatically remove you from automatic delivery program; you must contact us to remove yourself from our automatic delivery program.

We shall not be responsible for any failure to perform or for any delay in performance of the Terms where the failure or delay is due to acts of God, war, terrorism, embargo, explosion, sabotage, flood or other weather event, accident; transportation interruption or delay, oil shortage or supply disruption; strikes, lockouts or without limiting the generality of the foregoing, any other circumstances of like character beyond our control. Should our performance be prevented or delayed by any of the events described in the prior sentence, our performance shall be excused during the period so affected, and we shall have the right to terminate any price protection plans in effect, upon notice and without penalty.

Variable Price Plan. If you do not enroll in any of our price protection plans, you will automatically be enrolled in our variable price plan.  Under our variable price plan, you will pay our variable price per gallon in effect on the date of delivery to you.  Our variable rate per gallon is subject to change at any time without notice.  Eligible payment discounts may apply.  The current gross retail price per gallon may be obtained by calling our customer service department at 302-656-5110.

Fixed Price Plan. You may also choose to enroll into a Fixed Price Plan (“FIXED PLAN”). Our Fixed Plan includes a locked-in gross retail price per gallon for the number of gallons of heating oil selected during the effective dates of the program.

Under this Plan, you are responsible to purchase all gallons protected under the Plan.  Unused gallons are billed to the customer at the earlier of i) the end of the Plan year, or ii) the time of account cancellation and the actual gallons remaining for delivery are forfeited. All gallons delivered to the account during effective period of the Plan shall be applied against the account’s available balance of fixed price gallons. If you choose to purchase more than one batch of fixed price gallons for the same account, then all gallons delivered are applied to the first batch purchased – until that batch has been exhausted – then to subsequent batches.

Price guarantees under all plans listed above may be modified to allow for changes in applicable taxes and/or regulatory fees.

PAYMENT DISCOUNTS, TERMS, AND BUDGET PLANS

We will leave a delivery meter ticket at your property as proof for each delivery we make. This ticket will include the property address, gallons delivered and gross price (prior to any applicable payment discounts that we offer). In addition, we will mail to the billing address of record an itemized invoice and/or payment receipt for the delivery.

You agree to pay for the heating oil we deliver to you.  We offer the following payment discount and payment plans, subject to credit approval:

TERRIFIC 10 DISCOUNT PLAN. You will receive a 10¢ per gallon discount on your deliveries if you sign-up for our automatic bill payment option. To receive this discount, your full balance must be directly debited from either a bank account or credit card at the date and time of delivery. When enrolled in the Terrific 10 Plan, all charges from Burns & McBride, including HVAC service charges, will be automatically charged to your bank account or credit card. Further details on this option are in Section E below.

FAST 5 DISCOUNT PLAN. You will be mailed an invoice on the next business day after your fuel delivery is made. To get a 5¢ per gallon discount, you must pay the discounted amount shown on your bill within 10 days of the date of fuel delivery.

25-DAY TERMS. You will be mailed an invoice on the next business day after your fuel delivery is made. Pay the full amount listed on the invoice within 25 days of date of fuel delivery to avoid any finance charges or late fees.

12 Month Budget Payment Plan. We calculate the estimated amount of your monthly payment by using your heating oil consumption history to project the total dollar amount of your purchases for the upcoming 12 months, and then add or subtract your beginning account balance, if any. We divide this number by twelve to determine what your monthly budget payment will be. Each month, your statement will list your opening balance, amounts billed during the month, payments received and your ending account balance. Budget payments are due by the 10th of each month. Periodically, we review your account and may adjust your monthly payment amount to reflect any change in projected usage or other changes in the items listed above.

Regardless of payment option you select, you will be mailed an invoice on the next business day after delivery showing the gallons delivered, price per gallon and amount charged to your account for heating oil purchases, or a similarly detailed invoice for all HVAC services.

Terms of Payment

Annual Percentage Rate (APR) for Purchases APR: 19.99%.

See explanation below for APR1

Grace period for repayment of balance for Purchases The grace period is the number of days between the date of delivery of heating oil and your payment due date for that delivery. The grace period is 25 days from the date of delivery.
Method of computing the balance for Purchases subject to APR Total balance of all charges and fees payable in excess of thirty days from date of service or delivery.
Collection fees and expenses In the event that your account is referred to an outside agency or attorney for collection efforts, you agree to pay all attorney fees, court costs and other collection costs.
Fees for paying late Late-payment fee: Based on your balance on the business day after the Payment Due Date – $15 if $100 or less; $29 if between $100.01 and $1000; $39 if over $1000.

1When your payment is late (i.e., not received by 2 p.m., ET, on its Payment Due Date), the APR may be applied to those balances in excess of thirty days for which the payment was late or not received. Burns & McBride reserves the right to change the APR on your account.

Automatic Payment Plans

PAYMENT BY CREDIT CARD. You may choose to participate in the Terrific 10 Discount Plan by using a credit card to automatically charge your heating oil purchases. As an automatic delivery customer, approximately five days prior to your delivery we will obtain a payment authorization from your credit card provider. This authorization reserves credit availability for our oil delivery charges. The amount of the authorization is calculated using 120% of our anticipated delivery quantity times the current price for oil. (Initial deliveries are based on 120% of maximum tank size capacity times the current price for oil.) Once the delivery has actually been made, we will charge your credit card for the actual amount due and then release any excess funds. If you order oil using our call-in service, we obtain a payment authorization from your credit card provider at the time that you place your order. If you choose to cancel a delivery after it has been initially authorized, we will release our payment authorization. Your actual credit availability will be governed by the rules of your credit provider.

If you place a service call request using a credit card for payment, we will obtain a payment authorization from your credit card provider at the time that you place your request. If you choose to cancel the service call after it has been initially authorized, we will release our payment authorization. Your actual credit availability will be governed by the rules of your credit provider.

DEBIT CARD. You may choose to participate in the Terrific 10 Discount Plan by using a debit card to automatically charge your heating oil purchases. As an automatic delivery customer, approximately five days prior to your delivery we will obtain a payment authorization from your debit card provider. This authorization reserves funds availability for our oil delivery charges. The amount of the authorization is calculated using 120% of our anticipated delivery quantity times the current price for oil. (Initial deliveries are based on 120% of maximum tank size capacity times the current price for oil.) Once the delivery has actually been made, we will charge your debit card for the actual amount due and then release any excess funds. If you order oil using our call-in service, we obtain a payment authorization from your debit card provider at the time that you place your order. You represent and warrant that you have the right to authorize us to charge the funding account for payments due to Burns & McBride, and you will indemnify and hold us harmless from any claims by any other owner of the account. You also agree that we are not responsible for any overdraft or insufficient fund situation or charge (including, but not limited to, finance charges, late fees or similar charges) caused by your failure to maintain funds sufficient to pay all payments due. You further agree that we may charge a service fee for any returned payment, including, but not limited to, returns resulting from insufficient funds in your account or the fact that your account is closed or because you provided incorrect account or routing information to us. Currently, you are charged $20.00 per returned payment. You agree to promptly notify us in writing of any changes to the financial institution account information and authorize us to debit such account. If you choose to cancel a delivery after it has been initially authorized, we will release our payment authorization. Your actual funds availability will be governed by the rules of your banking provider.

If you place a service call request using a debit card for payment, we will obtain a payment authorization from your debit card provider at the time that you place your request.  If you choose to cancel the service call after it has been initially authorized, we will release our payment authorization. Your actual funds availability will be governed by the rules of your credit provider.

ACH BANK DRAFT. You may choose, subject to credit approval, to participate in our Terrific 10 Discount Plan, or pay for HVAC services, by having us use an Automated Clearing House (ACH) Bank Draft. To avoid overdraft charges, keep in mind that you will not receive notice of our draft prior to its being processed. Please make sure that adequate fund balances are available at all times. You represent and warrant that you have the right to authorize us to charge the funding account for payments due to Burns & McBride, and you will indemnify and hold us harmless from any claims by any other owner of the account. You also agree that we are not responsible for any overdraft or insufficient fund situation or charge (including, but not limited to, finance charges, late fees or similar charges) caused by your failure to maintain funds sufficient to pay all payments due. You further agree that we may charge a service fee for any returned payment, including, but not limited to, returns resulting from insufficient funds in your account or the fact that your account is closed or because you provided incorrect account or routing information to us. Currently, you are charged $20.00 per returned payment. You agree to promptly notify us in writing of any changes to the financial institution account information and authorize us to debit such account.

Oil Storage System Problems

The oil storage tank and associated piping (including oil lines) belong to you, or the property owner. As such, we neither assume nor accept any responsibility for this equipment or its maintenance. Remediation requirements resulting from spills, leaks or overfills due to the malfunction of this equipment are the responsibility of the tank owner.

We strongly encourage all oil storage tanks to be equipped with overfill protection, including the installation of an oil level vent alarm at your expense. Frozen oil lines, sludge or heating equipment failures remain your responsibility.

We accept no responsibility and we will not be liable for damages that may result from a heating failure, REGARDLESS OF CAUSE.

If you have more than one petroleum storage tank located anywhere on your property (either in active use or inactive), it is your responsibility to clearly label each tank to prevent accidental fuel delivery to an incorrect storage tank. We are not responsible for deliveries to incorrect tanks when tanks are not appropriately labeled, and we have not been notified in writing that multiple tanks are located on the property.

HEATING, VENTILATION & AIR CONDITIONING (HVAC) SERVICES

Emergency Service: Burns & McBride offers 24/7 emergency service availability 365 days a year. An “emergency” is defined as a service event, which in the Company’s sole judgment, would cause serious damage to a house or its occupants if not handled quickly.

Repair Service Requests: Any service request not covered under an active service plan may require a credit card for payment at the time the order is placed. Please call our customer service office for full details or to request repair service.

True Comfort: With True Comfort customers, there will be a 15% discount off of our standard Repair Prices of covered items for service requests received from 8:00 AM through 4:30 PM, Monday through Friday, excluding holidays. During any other hours, the customer will be charged our overtime Dispatch Fee and Repair Prices, less a 15% discount.

Damages: Burns & McBride accepts no responsibility and will not be liable for damages that may result from an HVAC failure in a vacant house, REGARDLESS OF CAUSE. Vacant properties should be checked daily by those responsible.

TANK PROTECTION PROGRAM

For customers who enroll into our Tank Protection Plan, in exchange for an annual enrollment fee, Burns & McBride will repair or replace, at the Company’s sole discretion, any or all of the following components of your heating oil storage tank system if it should develop a leak: oil tank (basement or above-ground tanks; 330 gallons or less in size), tank legs, oil lines, fill and vent pipe, tank gauge, vent alarm. There is no deductible or allowance – the full cost of the tank replacement is covered. This Plan does not cover underground tanks, tanks damaged by acts of God, explosion, fire, flood, storm or hurricane; tanks not connected to an oil-fired burner; loss of oil; removal of dirt or other property polluted by oil or any consequential damage to the environment. Participation in the program is optional. Coverage begins after payment for the plan has been received. The plan is self-renewing at the participation fee and program terms in effect at the time of renewal. The customer will be provided 14 days after the date of billing to cancel their automatic renewal.  There are no refunds or credit given for the customer’s premature termination of this plan.

Limitation of Liability

Our liability on all claims of any kind (excluding death), whether based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, for all losses or damages arising out of, connected with, or resulting from the delivery of heating oil, or from the performance or breach thereof, or from any equipment or services covered by or furnished under any service agreement, shall in no case exceed One Thousand ($1,000.00) Dollars.

In no event, whether based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, shall the Company, its employees and subcontractors be liable for special, incidental, indirect, exemplary or consequential damages.

These Limitations of Liability shall prevail over any conflicting or inconsistent provision contained in any item or document, which comprises the agreement between us and you. The remedies provided in these Terms are exclusive.

WAIVER OF SUBROGATION

We both agree to waive any and all rights of subrogation and or recovery, against each other, related to loss or damage as a result of these Terms or the delivery of heating oil, to the extent any loss or damage is covered by your or our insurance.  If either of us have loss or damage that is covered by our own insurance, we have no right of recovery against each other and our insurance carrier has no right of recovery by way of subrogation or assignment or otherwise.

Miscellaneous Policies and Procedures

Oil Delivery Issues: If you experience a problem with a fuel oil delivery, you should call (302) 656-5110 and describe the problem to a Burns & McBride customer service representative. Alternatively, if you wish to put your comments in writing, your letter should be addressed to Burns & McBride, Inc., P.O. Box 11287, Wilmington DE 19850-1287 or email your comments to info@burnsandmcbride.com

Delivery Requests: Excluding conditions beyond our reasonable control, we will respond to a delivery or service request or concern no later than the next business day after you notify us of your concern by phone or in writing. We are not responsible for a delay or failure to perform our obligations under these Terms if there is an event beyond our reasonable control, including without limitation any of the following types of events: fuel or labor shortage, an interruption in deliveries from our suppliers, embargoes, strikes, riots, war, terrorism, accidents, disorders, acts of God, or acts of any type by any governmental authority. In each and every case, we have the right either to cancel or to postpone any delivery without any liability whatsoever.

You may assign your account or these Terms only upon our prior written consent. We must agree in writing to any amendment or modification to these Terms. If a court or agency holds any provision of these Terms to be invalid, void or unenforceable, the remaining provisions shall nevertheless continue in full force and effect. These Terms are governed by the law of the state where the delivery or service is provided. These Terms, the delivery tickets, invoices and the recorded phone calls by us together constitute the entire agreement between us. No other statements are part of our agreement.

NOTE TO COMMERCIAL CUSTOMERS: Your heating oil purchases may be subject to various taxes depending upon the jurisdiction. Please make sure that you have notified our office of this obligation to ensure that you are being billed correctly for your purchases. In all events, taxes remain your responsibility and you will reimburse us if we are asked to pay them on your behalf.

Our customer service staff is available Mon. – Fri., 8:00 AM to 4:30 PM (excluding holidays) to assist in answering any questions you may have regarding your account.

Acceptance of These Terms and Conditions

After you receive these Terms, you may contact us or we may contact you, by telephone or in person. We will record any calls between us with your permission. In our meeting or on our call, we may give you specific details about your protected price plan, including the maximum price per gallon. You agree that by saying “yes”, “I agree” or similar words to that effect in the recorded telephonic call to show your agreement to these Terms, the protected pricing plan, you are accepting our price plan offer and these Terms, and entering into a legally binding agreement, effective as of the date of the recorded telephone call. You agree to the use of electronic communication, including telephonic recordings and similar technology, to enter into other contracts, to place orders and to create other records with us. You agree to the electronic delivery of records of transactions with us.

You accept these Terms by (A) receiving heating oil deliveries or using our services; OR (B) IF YOU HAVE NOT YET COMMENCED USING OUR SERVICES, BUT YOU HAVE NOT CANCELLED YOUR ACCOUNT WITH US WITHIN 30 DAYS OF OPENING YOUR ACCOUNT.

EFFECTIVE: 8/1/2017