Elba Express Company, L.L.C.

Original Volume No. 1

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Effective Date: 03/01/2010, Docket: RP10-342-000, Status: Effective

Original Sheet No. 43 Original Sheet No. 43

 

8.6 Dispute Resolution; Limitation of Liability

 

(a) GOVERNING LAW; VENUE; WAIVER OF JURY TRIAL.

 

THE PARTIES EXPRESSLY AGREE THAT THE LAWS OF THE STATE OF

NEW YORK, WITHOUT REGARD FOR ANY RULES FOR CONFLICTS OF LAW,

SHALL GOVERN THE VALIDITY, EFFECT, CONSTRUCTION, AND

INTERPRETATION OF THIS TARIFF EXCEPT WHERE PREEMPTED BY THE

NATURAL GAS ACT IN IMPLEMENTING FERC REGULATIONS AND

POLICIES. IN THE EVENT OF ANY DISPUTE RELATING TO THIS

AGREEMENT OR ANY RELATED AGREEMENT OR ANY OF THE

TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY, SUCH DISPUTE

SHALL, PRIOR TO INITIATING ANY FORMAL LEGAL PROCEEDING, BE

REFERRED FOR NO LESS THAN THIRTY (30) DAYS TO A SENIOR

MANAGEMENT REPRESENTATIVE OF EACH OF THE PARTIES FOR

RESOLUTION. EACH PARTY AGREES THAT NEW YORK, NEW YORK,

SHALL BE THE EXCLUSIVE VENUE FOR LITIGATION OF ANY DISPUTE

OR CLAIM ARISING UNDER OR RELATING TO THIS AGREEMENT OR ANY

RELATED AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR

THEREBY (EXCEPT FOR DISPUTES OR CLAIMS BROUGHT BEFORE FERC

WHERE PREEMPTED BY THE NATURAL GAS ACT IN IMPLEMENTING FERC

REGULATIONS AND POLICIES), AND THAT SUCH CITY IS A

CONVENIENT FORUM IN WHICH TO DECIDE ANY SUCH DISPUTE OR

CLAIM. EACH PARTY CONSENTS TO THE PERSONAL JURISDICTION OF

THE FEDERAL AND STATE COURTS LOCATED IN NEW YORK, NEW YORK,

FOR THE LITIGATION OF ANY SUCH DISPUTE OR CLAIM EXCEPT WHERE

PREEMPTED BY THE NATURAL GAS ACT IN IMPLEMENTING FERC

REGULATIONS AND POLICIES. AND HEREBY WAIVES ANY OBJECTION

WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF

ANY SUCH PROCEEDING BROUGHT IN SUCH A COURT. EACH PARTY

HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT

PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A

TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY

ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED

AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY

(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).

 

(b) LIMITATION OF LIABILITY; EQUITABLE REMEDIES

 

EXCEPT AS PART OF ANY EXPRESS REMEDY PROVIDED FOR

SPECIFICALLY IN THIS TARIFF OR ANY RELATED AGREEMENT,

NEITHER PARTY SHALL BE LIABLE TO ANY OTHER PARTY (INCLUDING

A THIRD-PARTY BENEFICIARY, IF ANY) FOR ANY SPECIAL,

EXEMPLARY, PUNITIVE, CONSEQUENTIAL (INCLUDING ANY LOST

PROFIT, REVENUE OR OPPORTUNITY) OR INCIDENTAL DAMAGES OR ANY

EQUITABLE REMEDIES ARISING OUT OF OR RELATED TO A BREACH OF

THIS TARIFF, EXCEPT TO THE EXTENT ARISING FROM SUCH PARTY'S

GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.

 

(c) ATTORNEYS FEES; LITIGATION EXPENSES

 

EXCEPT AS PART OF ANY EXPRESS REMEDY PROVIDED FOR

SPECIFICALLY HEREIN OR IN ANY RELATED AGREEMENT, NEITHER

PARTY SHALL BE LIABLE TO OR SHALL CLAIM FROM ANY OTHER PARTY

ANY COURT COSTS, LITIGATION EXPENSES OR ANY FEES OR EXPENSES

PAID OR OWING TO ATTORNEYS, EXPERTS, CONSULTANTS, OR

WITNESSES RETAINED FOR ANY DISPUTE OR CLAIM HEREUNDER OR IN

ANY WAY RELATED HERETO.