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. 137 Original Sheet No. 137

 

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 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), EXCEPT TO THE EXTENT ARISING FROM SUCH PARTY'S

GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.

 

(b) LIMITATION OF LIABILITY; EQUITABLE REMEDIES

 

EXCEPT AS PART OF ANY EXPRESS REMEDY PROVIDED FOR SPECIFICALLY IN THIS AGREEMENT OR

ANY RELATED AGREEMENT, AND EXCEPT WHERE COMPANY'S OR SHIPPER'S ACTIONS CONSTITUTE

GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BAD FAITH, 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 AGREEMENT OR ANY OTHER CLAIM (WHETHER IN TORT OR

OTHERWISE) ARISING THEREFROM.

 

7.3 No modification of or supplement to the terms and provisions hereof shall be or become

effective except by execution of a supplementary written agreement between the Parties except that (i)

a Capacity Release Transaction may be issued, and (ii) in accordance with the provisions of Rate

Schedule FTS, and the GT&C, Primary Receipt Points may be added to or deleted from Exhibit A and the

Maximum Daily Receipt Quantity for any Primary Receipt Point on Exhibit A may be changed upon

execution by Company and Shipper of a Revised Exhibit A to reflect the change(s), and (iii) Primary

Delivery Points may be added to or deleted from Exhibit B and the Maximum Daily Delivery Quantity for

any Primary Delivery Point may be changed upon execution by Company and Shipper of a Revised Exhibit B

to reflect the change(s). Any such change to Exhibit A or Exhibit B must include corresponding

changes to the existing Maximum Daily Receipt Quantities or Maximum Daily Delivery Quantities,

respectively, such that the sum of the changed Maximum Daily Receipt Quantities shall not exceed the

Transportation Demand and the sum of the Maximum Daily Delivery Quantities equals the Transportation

Demand.

 

7.4 This Agreement shall bind and benefit the successors and assigns of the respective Parties

hereto. Subject to the provisions of Section 20 of the GT&C applicable hereto, either Party may

assign this Agreement to an affiliated company without the prior written consent of the other Party,

provided that the affiliated company is creditworthy pursuant to Section 2.1(d) of the General Terms

and Conditions, but neither Party may assign this Agreement to a nonaffiliated company