per tank, plus applicable taxes, charges, and fees. All Cylinders will be inspected thoroughly and filled prior to delivery to Customer. Customer acknowledges that Propane Ninja’s costs may increase, and occasionally price variations from the suppliers and increased operating costs may change the cost to Propane Ninja in connection with supplying Customer’s LP gas. Customer agrees that changes in Propane Ninja’s price of LP gas, due to the fluctuations in costs associated with providing Customer with LP gas, will be passed on to the Customer without notice. Propane Ninja reserves the right to alter the pricing per Cylinder based on the volume (or variation thereof) of Cylinders purchased at each delivery in accordance with a Spread Pricing Sheet provided to Customer at the time of execution of this Agreement. The Spread Pricing Sheet is subject to change under the same terms and conditions listed above. Customer agrees that Propane Ninja will be the sole and exclusive supplier for all of Customer’s LP gas requirements for Customer’s operations. Customer is responsible for any applicable fees for licensing and insurance associated with the resale of Cylinders at Customer’s Premises.
4. Term of Agreement.
The term of this Agreement shall be three years from the date signed by the Customer and continue from year to year thereafter until terminated by Customer, at the expiration of the original term or any anniversary thereafter, upon sixty days prior written notice to Propane Ninja. Propane Ninja has the right to terminate this Agreement at any time. The Agreement will automatically and immediately terminate with respect to Premises if that Premises ceases to operate for any reason. Upon termination or Breach of this Agreement, no part of any payments or installation charges shall be refundable and Propane Ninja shall have the right, without being guilty of any trespass, to enter upon Customer’s Premises to remove the Equipment. Propane Ninja shall not be held liable for any injury or damage to the Premises as a result of the removal of the Equipment and Customer hereby waives and releases any claims it may have against Propane Ninja with respect to the removal of the Equipment. Customer shall maintain a duty to exercise due care to protect and maintain the Equipment from the time of its delivery throughout the duration of this Agreement, up to an including the time of removal.
5. Terms of Payment.
Customer agrees to pay all monies due to C.O.D. at the time delivery is provided. Customer agrees that Propane Ninja, in accordance with Section 3, shall have the right from time to time to change the payment terms. Customer understands and agrees that failure to pay Propane Ninja in accordance with the terms listed in this Agreement provides Propane Ninja with the right to discontinue Customer’s service at any time.
6. Breach of Agreement.
In the event of a breach of this Agreement by Customer, Propane Ninja shall be entitled to exercise any and all rights and remedies afforded it at law and equity. Propane Ninja shall seek the following non-exhaustive list of remedies: damages, loss of revenue and
lost profits. Customer agrees to completely and unequivocally indemnify and pay Propane Ninja for all costs incurred in removal of Equipment as a result
of Customer’s breach, including reasonable attorneys’ fees and costs. The Parties stipulate that Customer shall be responsible for paying Propane Ninja a sum equal to the average monthly charges during the three months prior to the breach multiplied by the number of months remaining in the term (whether the initial three-year term or a one-year renewal term) as liquidated damages. The Parties stipulate that this amount does not amount to a penalty nor is it disproportionate to any actual damages that would be recoverable from Customer’s breach. Customer also agrees to pay Propane Ninja the sum of $750.00
to remove the Cylinders and Cage(s) from the Premises, which Customer acknowledges is a minimum reasonable reimbursement for the cost of the removal of the Equipment. These payments do not eliminate Customer’s responsibility to pay Propane Ninja all unpaid invoices upon the termination of this Agreement.
Customer fully indemnifies and holds Propane Ninja harmless for any and all injuries to person or property, loss, damage, liability or claims (including, without limitation, costs and expense of litigation and reasonable attorneys’ fees) arising from or connected with the performance of any service performed by Propane Ninja as described in this Agreement except to the extent such claims are due to Propane Ninja’s willful misconduct or breach of this Agreement.
Unless otherwise agreed upon, Customer agrees to maintain General Liability insurance for injury to person and damage to property in an amount no less than $500,000.00 for each occurrence, coverage for medical expenses (any one person) in the amount of $5,000.00, coverage for personal injury in the amount of $500,000.00, and general aggregate coverage in the amount of $1,000,000.00. Customer shall provide Propane Ninja with a Certificate of Insurance reflecting the insurance coverage required herein and stating that Propane Ninja shall be provided with thirty days written notice prior to cancellation of such coverage.
9. Choice of Law.
The Agreement is made and entered in the state of Florida, and shall in all respects be interpreted, enforced and governed under the laws of Florida. The Parties waive their right to seek a trial by jury for any legal claim arising from this Agreement. In the event of a breach of this Agreement by either party, the other party shall be entitled to seek enforcement of this Agreement before a state or federal court of competent jurisdiction located in Hillsborough County, Florida and the state and federal courts located in Hillsborough County, Florida shall be deemed to have exclusive jurisdiction and venue over any litigation related to or arising from this Agreement. This Agreement shall not be construed to waive any right to removal that may apply to any action filed in state court by either party to this Agreement.
10. Security Interest.
Propane Ninja is the owner of the Equipment and Customer agrees that it is intent of the parties to create a lease by entering into this Agreement. In the event that this Agreement is determined not to be a lease, Customer hereby grants to Propane Ninja a security interest in the Equipment. Propane Ninja may use this Agreement as evidence of ownership with the appropriate authorities.
11. Taxes and Certain Fees.
Customer agrees to pay all fees, assessments, permit and licensing charges and renewals, taxes and charges governmentally imposed upon leasing, purchase, ownership, possession, operation, use or maintenance of the Equipment, whether assessed against Propane Ninja or Customer or the Equipment, whether due before or after the end of the term; including without limitations, licenses, insurance, sales taxes and personal property taxes. If Propane Ninja pays any of these charges, penalties or fines for Customer, Customer agrees to immediately reimburse Propane Ninja for the entire amount advanced by Propane Ninja.
Customer agrees that it has not sold, transferred, or assigned to a third party any rights under this Agreement. Customer understands that this Agreement may not be sold, transferred, or assigned to a third party without the written consent of Propane Ninja. Further, this Agreement shall be binding upon any successor or assignee of Customer, and no provisions, terms, or obligations contained herein shall be affected, modified, altered or changed in any respect whatsoever by any change in the ownership, control, or management of Customer. Customer agrees that this Agreement may be sold, transferred, or assigned by Propane Ninja to a successor company without the written consent of the Customer, and the provisions, terms, or obligations contained herein shall be binding upon the Customer.
This Agreement shall not be orally amended, modified, or changed. No change, amendment, or modification to the terms of this Agreement shall be valid unless such change, amendment, or modification is memorialized in a written agreement between the Parties that has been signed by Customer and a duly authorized representative of Propane Ninja.
14. Entire Agreement.
Except as specifically provided herein, any and all prior understandings or agreements between Propane Ninja and Customer with respect to the subject matter of this Agreement are superseded by this Agreement, which fully and completely expresses the entire agreement and understanding of the parties with respect to the subject matter contained within.
15. No Waiver.
A waiver by Propane Ninja of a breach of this Agreement by the Customer shall not be considered a waiver of any subsequent breach.
The language in this Agreement shall in all cases be construed as a whole, according to its fair meaning, and not strictly for or against any of the parties. Should any provision of this Agreement be declared or be determined by any court to be illegal or invalid, the remaining parts, terms or conditions shall remain valid unless declared otherwise by the court. Any term or condition which is determined to be illegal or invalid shall be deemed not part of this Agreement.
17. Restricted Use.
Customer acknowledges that Customer is aware that Section 527.07, Florida Statutes limits the use of containers. Under that statutory provision, no person, other than Propane Ninja and those authorized by Propane Ninja, shall sell, fill, refill, deliver, permit to be delivered, or use in any manner any liquid petroleum gas container or receptacle for any gas or compound.
Propane Ninja shall seek reimbursement of its legal fees for any legal counsel or collection agency that it is must retain to enforce any of its rights pursuant to this Agreement.