September 16, 2026
To All Southern Natural Gas Company, L.L.C. Shippers
RE: Open Season Announced for Southeast Connector Project
1. General
Southern Natural Gas Company, L.L.C. (“SNG”) is holding this binding open season (this “Open Season”) for its Southeast Connector Project (“SEC” or the “Project”), which is being developed to serve increasing natural gas demand in Southeast markets. The Project will provide critical supply access to meet the region's natural gas transportation needs by expanding SNG's system in Tennessee, Alabama, Georgia, South Carolina, and Florida and constructing a new supply line (the “SEC Extension”) that will interconnect with, and be capable of receiving gas from, certain third-party pipelines, as described in further detail below (collectively, the “Project Facilities”) and will therefore afford more supply basin options for new and existing shippers on SNG. SNG will determine the amount of firm transportation capacity to be made available under the Project (the “Project Capacity”) in a manner that supports shipper demand and maintains the economics of the Project.
The Project Capacity would be offered under Rate Schedule FT of SNG's FERC Tariff (as it may be amended from time to time, the “Tariff'), or, for shippers that take advantage of the redundant receipt point capacity option described below, a Project-specific rate schedule that allows for this right (the “Project Rate Schedule”). Unless otherwise indicated, capitalized terms that are used but not defined herein shall have the meanings assigned to such terms in SNG's Tariff.
This Open Season will commence as of the date and time of this notice and end at 4:00 p.m. CDT on October 7, 2026 (the “Open Season Period”).
The Project is anticipated to include receipt points for the SEC Extension that interconnect in Tennessee with the natural gas pipeline systems of (1) Tennessee Gas Pipeline Company, L.L.C., (2) Columbia Gulf Transmission, LLC (“CGT”), (3) Texas Eastern Transmission, LP (“TETCO”), and (4) Midwestern Gas Transmission Company (“MGT”) (collectively, the “SEC Receipt Points”), and delivery points on SNG's system and directly off of the SEC Extension in Tennessee, Alabama, and Georgia as well as potential interstate pipeline interconnects with East Tennessee Natural Gas, LLC, Transcontinental Gas Pipe Line Company, LLC, Sabal Trail Transmission Pipeline, LLC, Florida Gas Transmission, LLC, and Destin Pipeline Company, L.L.C. (collectively, the “SEC Delivery Points”). SNG also plans to expand its legacy system to serve growing markets in its existing service area. SNG will consider other receipt and delivery points that may be requested by potential shippers on a not unduly discriminatory basis. Capacity may be available on a seasonal basis.
Service utilizing the Project Facilities may include a supply area component, from the SEC Receipt Points to a virtual receipt and delivery point on the SEC Extension to be located immediately downstream of either the CGT or TETCO Interconnect (the “Virtual Point”) (the “Supply Area”), and a market area component, from the Virtual Point to delivery points downstream of such point (the “Market Area”). Provided that SNG is able to receive the necessary authorizations from the Federal Energy Regulatory Commission (“FERC”), including, if necessary, approval from the FERC of any required Tariff changes or the Project Rate Schedule, Project shippers will have the option to contract for redundant receipt point capacity in the Supply Area, such that their total receipt point capacity in the Supply Area could exceed their contracted Project capacity.
Potential shippers electing to submit Open Season bids shall have the option to allocate their requested Project capacity among receipt points and delivery points in the attached SEC Open Season Binding Bid Sheet (the “Bid Form”). SNG notes that the Project Capacity may not be available in the same increments to all locations on SNG's system and may not be available along particular laterals or at certain receipt or delivery points. SNG reserves the right to accept or reject potential shippers' receipt and delivery point requests, and related capacity allocation requests, on a not unduly discriminatory basis, to ensure that the collective allocations elected by shippers align with the Project needs and system design.
The Project is expected to be placed into service as early as November 1, 2030 (the “Target ISD”). SNG will consider requests from potential shippers to set their Project service target commencement date at a later date or to receive Project service in phases (so long as the target commencement date for all Project service would occur no later than November 1, 2032) on a not unduly discriminatory basis. The actual commencement date(s) for the Project shall be subject to receipt of all required regulatory approvals and completion of construction of the Project Facilities necessary to provide the applicable Project Capacity.
Project Capacity may be made available through, without limitation: (1) the Project Facilities, including the SEC Extension and modifications to and expansions of SNG's existing system, including the installation of laterals, appurtenant facilities, and modifications, as may be required to meet the specific needs of the Project shippers; and (2) the use of capacity reserved pursuant to Section 2.1(b)(vi) of the General Terms and Conditions (“GT&C”) of SNG's Tariff.
2. Open Season/Submission of Bids
To participate in this Open Season, potential shippers that are not in active negotiations with SNG for Project Capacity as of the date of this notice must submit to SNG a completed confidentiality agreement and Bid Form, each in the form included with this notice and executed by an officer or other authorized representative of such potential shipper. Upon receipt of a potential shipper's completed confidentiality agreement and Bid Form, SNG shall provide such potential shipper with a form of binding precedent agreement for the Project (a “Precedent Agreement”). Potential shippers will have the option to select service at the applicable recourse rate(s) or at the negotiated rate(s) offered by SNG, which shall take into account, among other things, the primary term, receipt points, and delivery points that the potential shipper has selected. SNG may offer shippers different rates for Project service in the Supply Area and the Market Area, or a shipper and SNG may agree that the rate for one such area will serve as compensation for Project service in both such areas. Potential shippers' rate elections shall be reflected in their executed Precedent Agreements.
To the extent a potential shipper has any minimum contract quantity below which it does not desire the Project Capacity or any contingencies to its bid, it should so indicate in the “Additional Information” section of the Bid Form.
Potential shippers should submit their executed confidentiality agreements and Bid Forms to SNG at: BDSouth@kindermorgan.com.
SNG shall review all bids received in accordance with the above-described process, including the conditions precedent, target commencement dates, and receipt and delivery point requests, along with related capacity allocations, contained therein, and will have no obligation to award Project Capacity to potential shippers submitting bids containing locations, or terms and conditions, that are not operationally or economically feasible for the Project.
3. Cornerstone Shipper, Foundation Shipper, and Anchor Shipper Status
SNG is offering qualifying potential shippers the opportunity to participate in the Project as “Cornerstone Shippers”, “Foundation Shippers”, and “Anchor Shippers”. Cornerstone Shippers, Foundation Shippers, and Anchor Shippers will be eligible for certain benefits, as described in further detail below.
Cornerstone Shippers:
Any shipper that submits an acceptable bid for Project Capacity may qualify as a Cornerstone Shipper for the Project by: (1) satisfying SNG's creditworthiness or credit support requirements for the Project; and (2) executing a Precedent Agreement by no later than the PA Deadline (as hereinafter defined) that contemplates, among other things, that such shipper will execute a service agreement (or service agreements) for firm transportation service under the Project for a primary term of at least 15 years and a transportation quantity of at least 1,000,000 dekatherms (“Dth”) per day (“Dth/day”) (such term and capacity requirements, the “Cornerstone Shipper Threshold”).
In addition to any other Cornerstone Shipper benefits that may be described in this Open Season notice, Cornerstone Shipper benefits, as further set forth in a Cornerstone Shipper's Precedent Agreement, may include: (a) optional interim capacity (if available before the Project commencement date); (b) a most favored nations provision; (c) the right to participate in future expansions of the SEC Extension; and (d) the right to reduce contracted volumes after execution of the Precedent Agreement, provided that a Cornerstone Shipper may not reduce its contracted volumes below the Cornerstone Shipper Threshold.
Foundation Shippers:
Any shipper that submits an acceptable bid for Project Capacity may qualify as a Foundation Shipper for the Project by: (1) satisfying SNG's creditworthiness or credit support requirements for the Project; and (2) executing a Precedent Agreement by no later than the PA Deadline that contemplates, among other things, that such shipper will execute a service agreement (or service agreements) for firm transportation service under the Project for a primary term of at least 15 years and a transportation quantity of at least 600,000 Dth/day but less than 1,000,000 Dth/day (such term and capacity requirements, the “Foundation Shipper Threshold”).
In addition to any other Foundation Shipper benefits that may be described in this Open Season notice, Foundation Shipper benefits, as further set forth in a Foundation Shipper's Precedent Agreements, may include: (a) optional interim capacity (if available before the Project commencement date); (b) a most favored nations provision; and (c) the right to participate in future expansions of the SEC Extension.
Anchor Shippers:
Any shipper that submits an acceptable bid for Project Capacity may qualify as an Anchor Shipper for the Project by: (1) satisfying SNG's creditworthiness or credit support requirements for the Project; and (2) executing a Precedent Agreement by no later than the PA Deadline that contemplates, among other things, that such shipper will execute a service agreement (or service agreements) for firm transportation service under the Project for a primary term of at least 15 years and a transportation quantity of at least 100,000 Dth/day but less than 600,000 Dth/day (such term and capacity requirements, the “Anchor Shipper Threshold”).
In addition to any other Anchor Shipper benefits that may be described in this Open Season notice, Anchor Shipper benefits, as further set forth in an Anchor Shipper's Precedent Agreement, may include the right to participate in future expansions of the SEC Extension.
SNG has executed precedent agreements for a portion of the Project Capacity with one or more shippers that qualify as Cornerstone Shippers, Foundation Shippers, and/or Anchor Shippers.
4. Evaluation Method and Award Process
Participation in this Open Season shall be considered binding. In order to be considered an acceptable bid, a bid must, at a minimum, contemplate a primary term of at least 15 years, otherwise comply with any bid requirements set forth herein or in the Bid Form, and not contain any proposed receipt or deliver points (or related capacity allocations), or required contract terms or conditions, that SNG determines are not operationally or economically feasible for the Project. Further, SNG may also deem a bid unacceptable if the potential shipper is not able to demonstrate an ability to satisfy SNG's anticipated creditworthiness requirements for the Project, which are further described below.
Upon the expiration of the Open Season Period, if SNG receives acceptable bids for Project Capacity in excess of the Project Capacity to be made available, SNG shall allocate capacity first to potential shippers submitting acceptable bids meeting the Cornerstone Shipper Threshold, then to potential shippers submitting acceptable bids meeting the Foundation Shipper Threshold, then to potential shippers submitting acceptable bids meeting the Anchor Shipper Threshold, then to other potential shippers submitting acceptable bids. If SNG is required to make prorations of acceptable bids within the same Project shipper category, SNG will do so by evaluating such acceptable bids on the basis of net present value (“NPV”) determined with reference to the volume, term, elected receipt/delivery points, and date the service is to commence for each acceptable bid. In calculating a bid's NPV, SNG will use a discounted cash flow factor of 10.0%.
SNG will have the right to aggregate acceptable bids in a manner that generates the highest NPV to SNG. As between acceptable bids within the same Project shipper category of equal NPV, Project Capacity shall be awarded on a pro-rata basis. Notwithstanding the foregoing, to the extent a potential shipper has indicated on its Bid Form that it has minimum contract quantity below which it does not desire the Project Capacity, such potential shipper would only be allocated Project Capacity pursuant to the above-described process if the amount it would be allocated meets or exceeds its minimum contract quantity.
SNG shall notify potential shippers submitting bids in this Open Season whether they were awarded Project Capacity by the date that is 15 days following the close of the Open Season Period.
All potential shippers awarded Project Capacity pursuant to this Open Season must submit to SNG an executed binding Precedent Agreement for the Project on or before the date that is 30 days following the conclusion of the Open Season Period (or such later date as may be determined by SNG) (the “PA Deadline”).
Notwithstanding the foregoing or anything herein to the contrary, SNG reserves the right not to accept, in a not unduly discriminatory manner among similarly situated bids, any bid that: (1) is uneconomical to SNG; (2) would require the construction of additional facilities other than those required to construct the proposed Project; (3) would require the construction of facilities that are disproportionate in cost to the quantity bid; (4) does not meet the requirements of this Open Season or the terms of SNG's Tariff; (5) contains unacceptable conditions or contingencies; or (6) contains a start or end date outside the parameters stated in this Open Season, including the Bid Form.
5. Firm Transportation Service
Service for the shippers awarded Project Capacity will be provided under SNG's Rate Schedule FT or the Project Rate Schedule, as applicable, and other applicable provisions of SNG's Tariff. This will be an incrementally priced project for which SNG is offering negotiated rates that will vary based on the location of the firm delivery points and the firm receipt points, and primary terms, elected by the shippers. Incremental recourse reservation rates will be derived once the Project is fully contracted, design of the Project Facilities can be thoroughly developed, and capital costs estimates for the Project can be confidently established.
In addition to the applicable reservation rate(s) selected by each Project shipper, and unless otherwise agreed by such shipper and SNG as set forth in such shipper's Precedent Agreement, each such shipper shall also be subject to: (1) the applicable Rate Schedule FT or Project Rate Schedule maximum applicable commodity rate, as applicable; (2) the applicable Rate Schedule FT or Project Rate Schedule Fuel Retention Percentage and Electric Power Charge, as applicable; and (3) all other applicable rates, charges, and surcharges as may be set forth in SNG's Tariff, including, but not limited to, any applicable annual charge adjustment surcharge.
6. SNG's Reservation of Rights
SNG reserves the following rights, in addition to all other rights that SNG has reserved herein or that SNG may have pursuant to its Tariff and FERC policies:
1. the right, at any time during this Open Season, upon notice and in its sole discretion, to terminate this Open Season, to extend the Open Season Period, or to modify this Open Season;
2. the right to clarify and finalize bids containing non-specific or ambiguous bid information (including, without limitation, rate, term, and receipt or delivery points) or discrepancies in bid information; provided, that, SNG shall have no obligation to do so;
3. the right to reject, on a not unduly discriminatory basis, any bid that it receives during this Open Season, including any bid that, in SNG's sole determination, is incomplete, is inconsistent with the terms of this Open Season, contains additions or modifications to the terms of this Open Season, is otherwise deficient in any respect, or requests service outside the scope of this Open Season;
4. the right to size of the Project in the manner that SNG determines appropriate and the right to suspend or terminate further development of the Project and not award any portion of the Project Capacity.
This Open Season is subject to all applicable laws, orders, rules, and regulations of authorities having jurisdiction.
5. Creditworthiness
Following a potential shipper's submission of an executed confidentiality agreement, SNG will conduct a credit evaluation of such potential shipper consistent with SNG's guidelines for expansions and anticipated credit requirements for the Project. Additionally, in the event a potential shipper is deemed non-creditworthy by SNG, such potential shipper must provide to SNG, in accordance with the terms of such potential shipper's Precedent Agreement, credit assurance applicable to the Project, in form and substance acceptable to SNG in its sole discretion. Such creditworthiness requirements shall remain in effect during the term of the Precedent Agreement, as well as the term of such shipper's service agreement(s) to be executed pursuant to such Precedent Agreement.
6. Turnback Capacity Solicitation
In addition to the above solicitation for bids to subscribe to SEC, SNG is soliciting bids for turn back of packages of capacity that would be beneficial to the design of the Project and would result in an economic gain to SNG. The effective date of the turnback must correspond with the commencement date of the Project. Any turn back capacity that is proposed to be effective earlier or later than the commencement date of the Project will not be considered. SNG may accept such requests in the manner which provides the most economic benefit to SNG by comparing the revenue lost from the turnback with the cost of service savings associated with the turnback by not having to build facilities associated with the Project. SNG will consider any requests for turnback on a not unduly discriminatory basis. Shippers interested in turning back capacity in association with this Open Season should submit a request by the end of the Open Season Period. Requests should include the proposed effective date of the turn back, the proposed firm capacity to be turned back, and the applicable receipt and delivery points that shipper is proposing to turnback.
SNG reserves the right to reject, in its sole discretion, any turnback requests that are incomplete, contain modifications to the terms of this turnback capacity solicitation, are submitted with any conditions on the turnback capacity, or are economically disadvantageous. The final design of the Project will take into consideration the results of this turnback capacity solicitation.
7. Contact Information
If you have any questions regarding this Open Season, please contact your Account Manager, Stephen Holmes in Business Development at 1-205-325-7420, Ryan Leahy in Business Development at 1-205-325-7105, or SNG by email to BDSouth@kindermorgan.com.
OPEN SEASON BINDING BID SHEET
SOUTHEAST CONNECTOR PROJECT CAPACITY
SOUTHERN NATURAL GAS COMPANY, L.L.C. (“SNG”)
Email Bid To: BDSouth@kindermorgan.com
1. Shipper Information:
Legal Name of Shipper:
Name of Requesting Party:
Title of Requesting Party:
DUNS Number:
Address:
Telephone:
Email Address:
2. Capacity Bid:
Requested Target Term Start Date(s): (cannot be earlier than November 1, 2030 or later than November 1, 2032)
Primary Term: (must be at least 15 years, but not more than 30 years)
Maximum Delivery Quantity (“MDQ”): Dth/day
Will Shipper accept an allocation of capacity if necessary ________________________ (“Yes” or “No”)
Receipt Point(s)
Receipt Point Quantity (Dth/day)
Delivery Point(s)
Delivery Point Quantity (Dth/day)
*The sum of the delivery point quantities at the primary delivery location(s) must equal the MDQ.
C. Affiliated Shipper Bidding:
Please state whether any affiliate of Shipper is bidding into this same Open Season and, if so, the business purpose of each affiliated company: _____________________________________________________________________________ _____________________________________________________________________________
_____________________________________________________________________________
D. Additional Information:
Additional information to clarify service request:
_____________________________________________________________________________ _____________________________________________________________________________
By submitting this binding bid to SNG, the Shipper certifies that (a) all information contained in this request is complete and accurate, (b) it satisfies, or will be able to satisfy, all applicable requirements of the Tariff and the Project as set forth in the Southeast Connector Project Open Season notice, (c) the person submitting this bid has full authority to bind the Shipper, and, (d) if Shipper and its affiliate(s) are both bidding into this Open Season, that Shipper has a different business purpose than its affiliate(s) for entering into this Open Season. Shipper also understands that if its bid is awarded, it will not be included as a participant in SEC unless it executes a Precedent Agreement with SNG on or before the PA Deadline.
Signature
Name (please print)
Title
Telephone
E-mail
CONFIDENTIALITY AGREEMENT
This Confidentiality Agreement, dated as of ___________, 20__ (this “Agreement”), is by and between [NAME OF ENTITY], a [STATE OF FORMATION] [TYPE OF ENTITY] (“Counterparty”), and Southern Natural Gas Company, L.L.C., a Delaware limited liability company (“SNG”). SNG and Counterparty may sometimes be referred to herein together as the “Parties” and individually as a “Party.” This Agreement sets forth the terms and conditions under which the Parties may disclose certain information to each other of a confidential and proprietary nature.
WHEREAS, SNG has held or is holding an open season (the “Open Season”) for SNG's proposed Southeast Connector Project (the “Project”);
WHEREAS, Counterparty has indicated an interest in acquiring Project capacity through the Open Season process;
WHEREAS, to facilitate discussions, negotiations, and the potential execution of definitive agreements relating to Counterparty's participation in the Project, Counterparty and SNG may each provide or disclose to the other Party certain Confidential Information (as hereinafter defined);
WHEREAS, the Parties wish to enter into this Agreement to set forth the terms and conditions under which each Party may disclose such Confidential Information to the other Party in connection with the Project; and
WHEREAS, for purposes of this Agreement, a Party disclosing Confidential Information to the other Party shall be known as the “Disclosing Party” and the Party receiving such Confidential Information shall be known as the “Receiving Party.”
NOW THEREFORE, in consideration of the covenants and conditions set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:
1. DEFINITION OF CONFIDENTIAL INFORMATION
1.1 As used in this Agreement, the term “Confidential Information” shall include all information about the business, financial condition, operations, assets and liabilities of the Disclosing Party and its affiliates, whether: (a) prepared by the Disclosing Party and/or its affiliates, any of its or their respective Representatives (as hereinafter defined), or otherwise; (b) in written, oral, electronic, or other form; (c) identified as “confidential” or otherwise; or (d) prepared prior to, on, or after the date of this Agreement, that is furnished to the Receiving Party or any of its Representatives by or on behalf of the Disclosing Party or any of its Representatives in connection with the Project, regardless of the manner or medium in which such Confidential Information is furnished, including all such information and documentation relating to the financial, tax, accounting, and other information of the Disclosing Party or any of its affiliates regarding business operations, prospects, value, and/or structure, marketing practices and techniques, business strategies and capabilities, business plans, and relationships with customers, suppliers, principals, employees, financing sources, hedging counterparties, contracting counterparties, and others, any such information that is a trade secret within the meaning of applicable trade secret law, and any documentation and materials prepared by the Receiving Party or any of its Representatives containing or based in whole or in part on any Confidential Information. With respect to Counterparty only, “Confidential Information” shall also include (i) the fact that the Parties are in discussions regarding the Project; (ii) any discussions, negotiations, and investigations regarding the terms, conditions, or other facts with respect to the Project, including the status thereof and the existence and terms of this Agreement; and (iii) the fact that Confidential Information has been made available by SNG to Counterparty.
1.2 Notwithstanding the foregoing, Confidential Information shall not include information that the Receiving Party can demonstrate:
(i) is rightfully known to or already in the possession of the Receiving Party or its Representatives prior to its disclosure by the Disclosing Party;
(ii) is or becomes generally available to the public other than as a result of disclosure, directly or indirectly, by the Receiving Party or its Representatives in violation of this Agreement;
(iii) is or becomes available to the Receiving Party or its Representatives on a non-confidential basis from a source other than the Disclosing Party or its affiliates or any of its or their respective Representatives; provided, that such source is not known by the Receiving Party or its Representatives (after due inquiry) to be bound by a confidentiality agreement with or other obligation of confidentiality to the Disclosing Party or its affiliates with respect to such information;
(iv) is independently derived by the Receiving Party or its Representatives without the aid, application, or use of any Confidential Information; or
(v) is authorized in writing by the Disclosing Party for disclosure by the Receiving Party, solely to the extent of such authorization.
2. PERMITTED PURPOSE, USE AND DISCLOSURE OBLIGATIONS
2.1 The Receiving Party may use, and may cause its Representatives to use, the Confidential Information solely to evaluate the feasibility of, and to facilitate discussions, negotiations, and the potential execution of definitive agreements relating to, the Project (the “Permitted Purpose”), and for no other purpose. Furthermore, the Receiving Party shall not, and shall direct its Representatives not to, directly or indirectly, at any time, disclose any Confidential Information to any person (other than the Disclosing Party or its Representatives) in any manner, except that the Receiving Party may disclose Confidential Information to its Representatives who have a bona fide need to know such information for the sole purpose of assisting, and solely to the extent necessary to permit such Representatives to assist, the Receiving Party in connection with the Permitted Purpose; provided, that, prior to the disclosure of the Confidential Information to any of its Representatives, the Receiving Party shall inform such Representatives as to the confidential and proprietary nature of the Confidential Information and shall direct each such Representative to comply with the terms of this Agreement. The Receiving Party shall be liable to the Disclosing Party for any action or omission prohibited under this Agreement by any of its Representatives.
2.2 For purposes of this Agreement, “Representatives” of any person shall mean its affiliates and the employees, directors, partners, officers, members, managers, owners, co-owners, controlling persons, investors, co-investors, joint venturers, debt financing sources, representatives, agents, consultants, and professional advisors of such person and its affiliates (including financial advisors, counsel, and accountants). An “affiliate” of any person shall mean any other person that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is or comes under common control with the first person. For purposes of the foregoing sentence, “control” of a person means the possession of power to direct or cause the direction of management and policies of such person, whether through ownership of voting securities, by contract, or otherwise. The term “person” as used in this Agreement will be interpreted broadly to include any governmental representative or authority or any corporation, company, limited liability company, enterprise, association, partnership, group or other entity or individual.
2.3 The Receiving Party agrees that it will employ procedures that are substantially similar to those it uses to protect its own information of a similar character to protect the confidentiality of any Confidential Information it receives from the Disclosing Party or its Representatives.
2.4 In the event that the Receiving Party or any of its Representatives becomes legally compelled (whether by subpoena, interrogatory, civil investigative demand, court or regulatory order, or otherwise) to disclose any Confidential Information, the Receiving Party will, to the extent permitted and reasonably feasible under the circumstances, provide the Disclosing Party with prompt written notice so that the Disclosing Party may seek a protective order or other appropriate remedy prior to any such disclosure and/or waive compliance with certain provisions of this Agreement. The Receiving Party shall reasonably cooperate with the Disclosing Party in seeking the protective order or other appropriate remedy so that the Confidential Information maintains its confidential and proprietary treatment. In the event that such a protective order or other protective remedy is not obtained or the Disclosing Party waives compliance with the relevant provisions of this Agreement, the Receiving Party will furnish only that portion of the Confidential Information that is legally required to be disclosed, in the opinion of its own counsel, and such Party will exercise its reasonable efforts to obtain reliable assurances that confidential treatment will be accorded the Confidential Information.
2.5 Within 15 days after being requested in writing by the Disclosing Party (which request may be made at any time and from time to time), the Receiving Party shall, and shall direct its Representatives to, either return to the Disclosing Party or destroy all Confidential Information and all documents, materials, or other items containing Confidential Information, without retaining any copies, summaries, or extracts thereof, and shall provide written confirmation of such return and/or destruction to the Disclosing Party within such 15 day period; provided, however, that: (i) any Confidential Information that is incorporated into presentation information provided to the management of the Receiving Party or its Affiliates may be retained by the Receiving Party or such Affiliates, but such Confidential Information shall remain subject to the terms of this Agreement; (ii) any Confidential Information that the Receiving Party or its Representatives is retaining pursuant to a document retention hold established in connection with any civil or criminal investigations or litigation may be retained by the Receiving Party or such Representatives until such time as the document retention hold is no longer in effect, at which time the Confidential Information shall be returned to the Disclosing Party or destroyed as aforesaid; and (iii) the Receiving Party and its Representatives shall not be required to return or destroy any electronic copies of any such Confidential Information, or any documents, materials, or other items containing Confidential Information, that shall have been archived in the Receiving Party's or its Representatives' electronic records archival system until such items are destroyed in accordance with the Receiving Party's or its Representatives' normal destruction policies; provided, further, that, notwithstanding any termination or expiration of this Agreement, all provisions of this Agreement shall continue to apply with full force and effect to any materials containing Confidential Information that are retained by the Receiving Party or its Representatives following a written request for the return or destruction thereof. Compliance with this Section shall not relieve the Receiving Party of its other obligations under this Agreement.
3. GENERAL
3.1 This Agreement shall be governed by, and construed in accordance with, the laws of the State of Texas, regardless of conflicts of laws principles that might apply the laws of another jurisdiction. EACH PARTY HEREBY CONSENTS TO THE JURISDICTION AND VENUE OF THE COMPETENT STATE AND FEDERAL COURTS LOCATED IN HARRIS COUNTY, TEXAS FOR ANY ACTION BROUGHT UNDER THIS AGREEMENT. EACH PARTY HEREBY IRREVOCABLY WAIVES ANY OBJECTION TO SUCH COURTS ON JURISDICTION, CONVENIENCE OR ANY OTHER GROUND. THE PRECEDING SHALL NOT APPLY TO A PARTY'S SEEKING TO ENFORCE A JUDGMENT OF SUCH COURT IN ANOTHER COURT, VENUE, OR JURISDICTION.
3.2 EACH PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY.
3.3 IN NO EVENT SHALL A PARTY BE ENTITLED TO RECOVER PUNITIVE, INDIRECT, CONSEQUENTIAL, LOST PROFIT, LOSS OF REVENUE OR OPPORTUNITY, SPECIAL OR EXEMPLARY DAMAGES UNDER THIS AGREEMENT OR FROM A BREACH HEREOF. ALL DAMAGES SHALL BE LIMITED TO ACTUAL DAMAGES ONLY.
3.4 If any provision of this Agreement is declared void or otherwise unenforceable, such provision shall be deemed to have been severed from this Agreement, which shall otherwise remain in full force and effect.
3.5 No failure or delay by a Party in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
3.6 The Receiving Party hereby acknowledges and agrees that any Confidential Information disclosed to the Receiving Party or its Representatives is considered by the Disclosing Party to be of a special, unique, and proprietary character and that, in the event of any breach or threatened breach of any provision of this Agreement, remedies at law may be inadequate. The Receiving Party agrees, therefore, on behalf of itself and its Representatives, that the Disclosing Party may be entitled to specific performance and injunctive or other equitable relief without any showing of irreparable harm or damage, and the Receiving Party hereby waives, and shall cause its Representatives to waive, any requirement for the securing or posting of any bond or other security in connection with any such remedy. Such remedies shall not be deemed to be the exclusive remedies for any breach or threatened breach of this Agreement, but will be in addition to all other remedies available at law or in equity to the Disclosing Party or any of its affiliates. Any trade secrets included in the Confidential Information will also be entitled to all of the protections and benefits under applicable trade secret law. The Receiving Party hereby waives, and shall use all reasonable efforts to cause its Representatives to waive, any requirement that the Disclosing Party or any of its affiliates submit proof of the economic value of any trade secret or post a bond or other security.
3.7 Neither this Agreement nor disclosure of any Confidential Information to the Receiving Party or its Representatives shall be deemed by implication or otherwise to vest in the Receiving Party or its Representatives rights in or to the Confidential Information, other than the right to use such Confidential Information solely for the Permitted Purpose. The Disclosing Party shall retain sole and exclusive ownership of all right, title, and interest in and to all Confidential Information and any and all materials provided by the Disclosing Party or its Representatives to the Receiving Party or its Representatives hereunder, and all intellectual property rights therein. The Receiving Party's right to use the Confidential Information for the Permitted Purpose is revocable and not coupled with an interest in any Confidential Information. No license by implication, estoppel, or otherwise under any patent, copyright, trade secret, trade mark, or other intellectual property right is granted by the Disclosing Party hereunder, other than any such license or other right to use disclosed Confidential Information for the Permitted Purpose. Neither Party represents or warrants that Confidential Information disclosed hereunder will not infringe any third party's patents, copyrights or trade secrets or other proprietary rights.
3.8 The Receiving Party acknowledges, on behalf of itself and its Representatives, that neither the Disclosing Party nor its Representatives makes any representations or warranties, express or implied, as to the accuracy or completeness of the Confidential Information, that neither the Disclosing Party nor its Representatives shall have any liability whatsoever to the Receiving Party or its Representatives or any other person as a result of the use of the Confidential Information or any errors therein or omissions therefrom by virtue of this Agreement and that the Receiving Party and its Representatives shall assume full responsibility for all conclusions derived from the Confidential Information.
3.9 Both Parties acknowledge and agree that neither Party is obligated to enter into or commence or continue any discussions or negotiations pertaining to the Project, and that no such obligation shall arise unless and until a definitive agreement relating to the Project is executed and delivered by the Parties.
3.10 No agency, partnership, joint venture, or other joint relationship is created by this Agreement. There are no third parties that are intended to benefit from any of the agreements created hereby.
3.11 This Agreement shall not be assignable by Counterparty without the express written consent of SNG. This Agreement shall be binding upon the Parties hereto and upon their respective successors and assigns.
3.12 All notices, consents, approvals, requests, claims, demands, and other communications required or permitted under this Agreement (each, a “Notice”) shall be in writing and may be delivered by personal delivery, by certified or registered United States mail (postage prepaid, return receipt requested), by a nationally recognized overnight delivery service for next day delivery, or by electronic mail to the address shown below in respect of a Party (or at another address designated by a Party by Notice to the other Party). Any Notice delivered or transmitted to a Party as provided above will be deemed to have been given and received on the day it is delivered or transmitted, if it is delivered before 5:00 p.m., local time, on a business day, or on the next business day if it is delivered or transmitted after such time or on a day that is not a business day.
Notice Address(es) for SNG:
Southern Natural Gas Company, L.L.C.
569 Brookwood Village, Suite 600
Birmingham, Alabama 35209
Attention: Vice President, Business Development
Email: BDSouth@kindermorgan.com
Notice Address(es) for Counterparty:
[COUNTERPARTY NAME]
[COUNTERPARTY ADDRESS]
Attn: [NOTICE PERSON(S)]
Email: [EMAIL ADDRESS(ES)]
3.13 Except as otherwise provided herein, the restrictions and covenants set forth herein shall terminate and be of no further force and effect upon the two-year anniversary of this Agreement. For the avoidance of doubt, any Confidential Information retained by the Receiving Party or its Representatives following a request for the return or destruction thereof shall remain subject to all provisions of this Agreement notwithstanding the expiration of this Agreement pursuant to this Section 3.13. Following the expiration or termination of this Agreement, the following provisions shall survive for purposes of any claim or dispute relating to the Agreement: 3.1, 3.2, 3.3, and 3.13.
3.14 This Agreement constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, between the Parties with respect to the subject matter hereof.
3.15 This Agreement may be executed in one or more counterparts (which may be delivered via emailed .pdf or other electronic means), each of which shall be deemed to be an original, but all of which shall constitute the same agreement.
[Signature page follows.]
IN WITNESS WHEREOF, authorized representatives of the Parties have executed this Agreement as of the date first written above.
By: ____________________________________
Name:
Title:
[FULL LEGAL NAME OF COUNTERPARTY]
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