Blue Rhino Home Delivery Terms of Service

IMPORTANT - READ CAREFULLY BEFORE USING THE CYLINDERS (AS DEFINED). BY SUBMITTING A CYLINDER ORDER, YOU ACCEPT THESE TERMS AND AGREE TO THE FOLLOWING PROPANE CYLINDER DELIVERY EXCHANGE AGREEMENT ("AGREEMENT") GOVERNING THE USE, RECEIPT AND PAYMENT FOR THE CYLINDERS PROVIDED BY FERRELLGAS L.P. D/B/A BLUE RHINO. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS "YOU," "YOUR," OR ANY VARIATION THEREOF SHALL REFER TO SUCH ENTITY, ITS OFFICERS, EMPLOYEES AND CONTRACTORS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, OR DO NOT WISH TO RECEIVE THE SERVICES, DO NOT PROCEED AND DO NOT USE THE SERVICES. THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT ARE LEGALLY BINDING UPON THEIR ACCEPTANCE.

By submitting a cylinder order, this Agreement is made between you and Ferrellgas, L.P. d/b/a Blue Rhino, a limited partnership organized under the laws of the State of Delaware (“Company” or “Blue Rhino”). You and Blue Rhino are collectively referred herein as “parties.”

1. SERVICES. Lowes Home Improvement sells or exchanges to its customers liquid petroleum gas in cylinders provided by Blue Rhino. (“Cylinders” or “Cylinder”).  Pursuant to this Agreement, Blue Rhino will deliver Cylinders Ordered (as defined) from Lowes Home Improvement to and retrieve Cylinders from the customer’s designated location (a "Customer Location"); depending on your Order, Blue Rhino will either deliver a Spare Cylinder or conduct an Exchange; these Cylinder sales and exchanges and related offerings further described on the Lowes Website (as defined) are collectively referred to herein as, the "Services." You are requesting that Blue Rhino provide you with the Services and the Services are governed by this Agreement. You agree that for an Exchange Order, Blue Rhino will retrieve a Cylinder from you at your Customer Location in exchange for a Cylinder ordered through Lowes Website (as defined).  Blue Rhino shall provide the Services subject to and in accordance with the terms and conditions of this Agreement, and the specifications, pricing, offers and other information found on the Lowes Home Improvement website located at http://www.lowes.com, which may be amended from time to time (the "Lowes Website"). You agree to pay for the Services as and when provided. The Services shall be provided upon your order or authorization thereof through the Lowes Website (each an "Order"). Unless otherwise agreed to by you, a single Order does NOT obligate you to any future or additional Orders.
2. SAFETY.  You acknowledge that there are hazards (disclosed and undisclosed, known and unknown) associated with the Cylinders, as well as the storage, use and handling thereof, including, without limitation, the potential for property damage, injury, or even death. You agree to inspect the Cylinders.  You agree to review and comply with all labels and warnings on the Cylinders before using them. You acknowledge that you are familiar with the use of Propane and the Cylinders and are fully aware of such hazards whether or not articulated herein, on the Lowe’s Website or elsewhere by Blue Rhino. You have reviewed and will continue to review on a regular basis the safety information provided on the Blue Rhino website, on the Blue Rhino tank sleeve, and as otherwise provided by Blue Rhino and you hereby disclaim any and all liability of Blue Rhino in connection with the safety tips. Blue Rhino makes no warranty now or in the future of any kind or nature in connection with its safety tips, nor will it be liable in any fashion to you or any third party for posting or not posting any safety tips or warnings in connection with the Cylinders or the Services.  You assume all responsibility for the suitability and the results of using the Cylinders alone or in combination with other equipment, articles and/or substances, and you hereby agree to indemnify and hold Blue Rhino harmless for any such use, authorized or unauthorized.
3. CUSTOMER LOCATION:  Until expressly revoked, you hereby grant to Blue Rhino a right to enter upon the premises of the Customer Location to provide the Services and to remain there for a reasonable period of time to perform the Services. You agree that Blue Rhino may refuse to provide the Services or exchange or deliver Cylinders to the Customer Location if Blue Rhino, in its sole discretion, believes the use or delivery of the Cylinders at the Customer Location is unsafe, unlawful or otherwise not advisable. The immediately foregoing does not create a duty or require Blue Rhino to inspect the Customer Location or any equipment with which you may or may not intend to use the Cylinders, and Blue Rhino makes no warranty of any kind or nature that it will, nor will it be liable in any fashion to you or any third party for making or failing to make any such inspection. You agree that it is your responsibility to make sure that the use of the Cylinders is safe and lawful and you agree to keep the Cylinders in a safe location at the Customer Location.’’
4. TITLE:  You agree that in any exchange of Cylinders, title to the Cylinder delivered to the Customer Location transfers to you upon delivery of the Cylinder by Blue Rhino. For an exchange Order you agree that title to the Cylinder Blue Rhino retrieves from the Customer Location transfers to Blue Rhino upon retrieval of that Cylinder from the Customer Location.
5. YOUR RESPONSIBILITIES AND WARRANTIES: Along with the other representations and warranties made by you, both expressly herein and implied by law, you hereby make the following representations and warranties and expressly agree to indemnify and hold Blue Rhino harmless in connection with each of your representations and warranties. You acknowledge that Blue Rhino has no means of control over the Cylinders or their use after they are delivered to you, and that you shall be liable for any and all use or storage of the Cylinders after they are delivered to the Customer Location (including any tampering or unauthorized use of the Cylinders). You warrant that you have the legal right to have the Cylinders installed, delivered and/or used at the Customer Location, and that your use, maintenance and storage of the Cylinders is and shall remain in compliance with all applicable regulations, laws, codes, permits and/or requirements of any authority having jurisdiction. You warrant that Blue Rhino will have adequate access to the Customer Location for the provision of the Services, including, but not limited to, where any Cylinder is located. You represent and warrant that you are fully aware of all hazards associated with the use of the Cylinders whether or not articulated in this Agreement, on the Website, on Ferrellgas’ website, or elsewhere.
6. LIABILITY/INDEMNIFICATION: You expressly, and without any reservation or other carve out, release in all manner whatsoever and agree to indemnify and hold Blue Rhino, its employees, officers, directors, contractors and affiliates, as well as those of its parent, subsidiaries, contractors, affiliates, agents and its and their successors and assigns, harmless from and against any claim, liability, loss, damage, personal injury (including wrongful death), property damage or other consequence to any person or entity (including reasonable attorneys' fees) and other non-economic and economic loss including lost profits and revenue (collectively "Claims") resulting, either directly or indirectly, from (a) your use or storage of the Cylinders; (b) the tampering or unauthorized use of the Cylinders; (c) breach of any of your representations or warranties set forth in this Agreement or implied by law; (d) any defects or liabilities caused by equipment owned or used by you; and (e) your or your guests’ invitees’, family members’, employees’ agents’ contractors’ and/or customers’ negligent acts and/or omissions and misconduct. You agree to pay all settlements, awards, judgments, and expenses, including attorneys’ fees arising out of or resulting from your or your employees’, contractors’, and/or customers’ use of any Cylinders. Blue Rhino shall not be liable to you or any third party for any Claim unless directly caused by Blue Rhino’s gross negligence or willful misconduct.
7.  LIMITATION OF LIABILITY: EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 6 ABOVE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL BLUE RHINO BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, PUNITIVE, CONSEQUENTIAL, EXEMPLARY, SPECIAL, INCIDENTAL, RELIANCE, INDIRECT DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR LOSS OF GOODWILL (COLLECTIVELY, "DAMAGES") ARISING OUT OF OR RELATED TO THE CYLINDERS, SERVICES OR THIS AGREEMENT, WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT OR ANY OTHER FORM OF ACTION, EVEN IF BLUE RHINO HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES. THE LIMITATIONS OF LIABILITY IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED IN THIS AGREEMENT. YOU ACKNOWLEDGE THAT THE PARTIES WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THE FOREGOING LIMITATIONS OF LIABILITY.
8.  LIMITED WARRANTY:  Blue Rhino warrants that it has good and sufficient title to the Cylinders sold hereunder, and that the propane delivered in the Cylinders will meet nationally recognized specifications for commercial grade propane. THERE ARE NO EXPRESS WARRANTIES BY BLUE RHINO OTHER THAN THOSE SET FORTH AND SPECIFIED IN THIS SECTION 8. BLUE RHINO MAY MAKE IMPROVEMENTS AND/OR CHANGES IN THE FERRELLGAS WEBSITE AT ANY TIME, HOWEVER, BLUE RHINO MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, AVAILABILITY, TIMELINESS, AND/OR ACCURACY OF THE INFORMATION CONTAINED ON THE FERRELLGAS WEBSITE OR LOWES WEBSITE, NOR THAT THE LOWES WEBSITE WILL BE AVAILABLE FOR YOU TO PLACE ORDERS. NO WARRANTIES BY BLUE RHINO WILL BE IMPLIED OR OTHERWISE CREATED UNDER THE UNIFORM COMMERCIAL CODE OR ANY OTHER LAW AND BLUE RHINO DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS OF A PARTICULAR PURPOSE, OR ANY IMPLIED WARRANTIES ARISING FROM USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PROPANE AND EQUIPMENT ARE OTHERWISE PROVIDED ON AN "AS IS" BASIS.
9.  FORCE MAJEURE: Blue Rhino shall not be liable to you or any other person for failure to supply any Cylinder or for any delay, loss or damage, or any failure to perform this Agreement due to any condition beyond its reasonable control, including, but not limited to, flood, fire, earthquake, volcanic action, explosion, power blackout, weather storm, strike, labor dispute, embargo, inability to obtain sufficient or suitable materials, product allocation or shortage at the terminal, acts or omissions of carriers or transportation facilities, governmental regulation, civil or military authority, acts of God, war, or terrorism.
10. SUCCESSORS/ASSIGNS: This Agreement shall inure to the benefit of and binding upon the parties and their respective successors, legal representatives and assigns, except that you shall not assign this Agreement without the written consent of Blue Rhino. You agree that Blue Rhino may assign this Agreement at any time.
11. NOTICES: All communications and notices provided for or permitted by this Agreement to Blue Rhino shall be in writing and received by Blue Rhino either via mail or sent by a reputable overnight delivery service with fees prepaid to the address set forth above, or as otherwise provided for on the Ferrellgas website. All communications to you shall be in the form of electronic mail to the email address associated with your account. Blue Rhino is not responsible for any communications or notices not received by you in the event you have provided an inoperable email address.
12. ARBITRATION: 
    1. Agreement to Arbitrate. You agree that any claim, dispute or controversy, whether in contract, tort (intentional or otherwise), including without limitation, product liability, property damage, personal injury claims, or claims based on strict liability, whether pre-existing, present, or future, and including constitutional, statutory, common law, regulatory, and equitable claims in any way relating to (a) the Services; (b) the Agreement; (d) Propane and/or Cylinders delivered or sold by Blue Rhino; or (e) the Safety Plan, advertisements, promotions, or other brochures or writings prepared by Blue Rhino in any way relating to the Services or this Agreement and/or the relationship between you and Blue Rhino, including the validity, enforceability, or scope of this Section or any part thereof (collectively, a “Claim”) shall be resolved, upon the election of either you or Blue Rhino, by binding arbitration.
    2. Process for Arbitration. Arbitration will be governed by this Section 12 and your choice of the applicable rules of either the American Arbitration Association, JAMS/ Endispute, or the National Arbitration Forum in effect at the time the Claim is filed. The party initiating the arbitration proceeding shall have the right to select one (1) of the above arbitration administrators. The Claim shall be heard by a panel of three (3) independent arbitrators. Each party shall appoint one (1) arbitrator within sixty (60) days of the initiation of the arbitration proceeding, and the third impartial arbitrator must be an attorney with more than ten (10) years’ experience or a judge or retired judge and be appointed by the other arbitrators within thirty (30) days after appointment of the arbitrators appointed by the parties. The arbitration shall take place in the county in which the Services are provided to you. For claims of $5,000 or less, you will have the option of choosing whether the arbitration proceeds in person, by phone or based only on submissions to the arbitrators. The arbitrators may award any form of individual relief – including injunctive relief – as permitted by applicable state or federal law. In the event of a conflict between this Section 12 and the rules of the arbitration administrator, this Section 12 will govern. This Section 12 shall not apply to Claims by Blue Rhino for payment of amounts due to Blue Rhino or Lowes Home Improvement.
    3. No Class Action. NO CLASS ACTIONS OR JOINDER OR CONSOLIDATION OF CLAIMS WITH OTHER PERSONS ARE PERMITTED IN THE ARBITRATION WITHOUT THE CONSENT OF BOTH YOU AND US. The arbitration administrators selected pursuant to Section 12b above are authorized to arbitrate disputes as to any Claim brought by you against Blue Rhino or by Blue Rhino against you and, without our consent, are not authorized to arbitrate any similar or identical claims brought by other persons.
    4. d. Payment of Fees. Blue Rhino agrees to pay the arbitration filing fee for non-frivolous claims. If you must pay any additional fees to the arbitration administrator, Blue Rhino will consider a request to pay all or part of the additional fees; however, Blue Rhino shall not be obligated to pay the additional fees unless the arbitrators grant you an award. If the arbitrators grant an award in your favor, you will not be required to reimburse Blue Rhino for any fees we have previously paid to the arbitration administrator or for which Blue Rhino is responsible.
    5. Minimum Recovery. In the event you receive an arbitration award greater than our last written settlement offer, if any, to you, then Blue Rhino will pay you the greater of the arbitration award or $1,000, plus your reasonable attorneys’ fees.
    6. General Statements. This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1-16 (the “FAA”). The arbitrators shall apply substantive law consistent with the FAA and the arbitrators’ award shall not be subject to appeal, except as permitted by the FAA. Nothing in this Section shall be construed to prevent Blue Rhino’s use of offset or other contractual rights to pay off any amounts you owe to Blue Rhino. YOU ACKNOWLEDGE THAT YOU HAVE A RIGHT TO LITIGATE CLAIMS IN COURT BEFORE A JUDGE OR JURY, BUT YOU PREFER TO RESOLVE ANY SUCH CLAIMS THROUGH ARBITRATION AND KNOWINGLY AND VOLUNTARILY WAIVE YOUR RIGHTS TO LITIGATE SUCH CLAIMS IN COURT BEFORE A JUDGE OR A JURY, UPON ELECTION OF ARBITRATION BY YOU OR BY BLUE RHINO. YOU WILL NOT HAVE THE RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF ANY CLASS OF CLAIMANTS PERTAINING TO ANY CLAIM SUBJECT TO ARBITRATION, EVEN IF SUCH CLASS ACTION IS PENDING ON THE EFFECTIVE DATE OF THIS ARBITRATION PROVISION, EXCEPT THAT THIS ARBITRATION PROVISION WILL NOT PRECLUDE YOUR PARTICIPATION IN A CLASS WHICH HAS ALREADY BEEN CERTIFIED ON THE EFFECTIVE DATE OF THIS ARBITRATION PROVISION. THIS SECTION 12 DOES NOT APPLY TO ARKANSAS RESIDENTIAL CUSTOMERS.
13. YOUR CONTACT INFORMATION. You agree to provide Blue Rhino with complete, accurate and current contact information through the Lowes’ Website. This information shall include, but not be limited to, your name, address of the Customer Location where you want a Cylinder(s) delivered, a functional e-mail address, and the name and telephone number of an authorized billing and delivery contact where necessary. It is your sole responsibility to update this information prior to any scheduled delivery. Failure to update information in a timely manner may lead to Redelivery or Cancellation Fees. You agree to notify Blue Rhino immediately if there is any change to any of that information. FAILURE TO DO SO IS A BREACH OF THIS AGREEMENT.
14. YOUR CONSENT TO BEING CONTACTED. By providing a telephone number or email address, now or in the future, you agree that Blue Rhino (and others on its behalf) may contact you at that email address by emailing you or at your telephone number via text message (whether manually or automatically dialed) and telephone call (whether manually or automatically dialed, and whether using a live, artificial, or prerecorded voice) regardless of whether you will incur charges. You further agree that such communications may include, without limitation, delivery reminders, delivery confirmations, and account notifications. YOU ACKNOWLEDGE AND AGREE THAT YOUR CONSENT TO SUCH COMMUNICATIONS IS A MATERIAL AND ESSENTIAL PART OF THIS AGREEMENT AND THAT YOU PROVIDED IT AS PART OF A BARGAINED-FOR EXCHANGE.
15.  WAIVER. If we delay in exercising any of our rights, Blue Rhino will not be prevented from exercising our rights at a later date. Blue Rhino’s waiver of any breach of this Agreement at any time shall not excuse future breaches by you.
16.  SEVERABILITY. If any provisions of this Agreement are determined to be invalid under applicable law or unenforceable by a court, such provision shall be deemed to be restated to reflect, as nearly as possible, the original intention of this Agreement in accordance with applicable law. The remaining terms will remain unaffected by the invalid or unenforceable term, and each term will continue to be valid and enforceable to the fullest extent of the law.
17.  SURVIVAL. Paragraphs 3, 5, 6, 7, 8, 12, and 16 shall survive termination of your relationship with Blue Rhino.
18. AMENDMENT. Blue Rhino reserves the right to amend or add to this Agreement at any time by posting a new version of the Agreement on the Lowes’ Website. This Agreement may not be modified orally.  Any prior arrangements, agreements, contracts, representations, warranties, purchase orders, bids, proposals, offers, or other communications, written or oral, that are inconsistent with this Agreement, are superseded and of no force or effect.
19. ENTIRE AGREEMENT.  This Agreement constitutes the entire agreement between you and Blue Rhino.  No employee, representative, or agent has any authority to vary the terms of this Agreement.