DATE: November 11, 2025 TIME: 2:00 CST
TO: ALL TENNESSEE GAS PIPELINE COMPANY, L.L.C. CUSTOMERS
RE: Binding Open Season for South Texas Enhancement Project
(OPEN SEASON POSTING #1424)
Tennessee Gas Pipeline Company, L.L.C. (“Tennessee” or “TGP”) is holding this binding open season (the “Open Season”) for its South Texas Enhancement Project (the “Project”), pursuant to which Tennessee plans to install a new compressor station in Brooks County, Texas Station and perform certain additional system modifications. The Project is currently designed to provide up to 29,000 dekatherms ("Dth") per day (“Dth/day”) of incremental firm transportation capacity (the “Project Capacity”) from various Tennessee existing or new receipt points in the Agua Dulce area north of Compressor Station 1 on Tennessee's 100 Line in Zone 0, including connections to the existing or proposed Tennessee interconnections with NET (PIN # 47799), WHISTLER (PIN # 54847), and GCX (PIN #TBD), to delivery points at the Mexico border (TGP PIN # 421017 or 450261) on Tennessee's 400 Line in Zone 0 (the “Project Path”), and to create additional capacity to facilitate receipt point amendments to existing transportation contracts along the Project Path. Unless otherwise indicated, capitalized terms that are used but not defined herein shall have the meanings ascribed to such terms in Tennessee's FERC NGA Gas Tariff (as it may be amended from time to time, the “Tariff”).
Capacity awarded pursuant to the Open Season may be made available through: (1) modifications to TGP's existing pipeline configuration, including the installation of appurtenant facilities and modifications, as may be required to meet the specific needs of the Project shippers (the “Project Facilities”); and/or (2) the use of capacity reserved pursuant to Article XXVI, Section 5.8 of the General Terms and Conditions ("GT&C") of Tennessee's Tariff. The commencement date for the Project (the “Commencement Date”) is anticipated to be April 1, 2028, but such date may be adjusted depending upon the in-service date for the Project Facilities, the capacity being utilized, or the facilities required to meet the Project shippers' requests.
To participate in the Open Season, a potential shipper must first submit to Tennessee a completed confidentiality agreement 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 executed confidentiality agreement, Tennessee shall provide such potential shipper with an indicative recourse reservation rate for the Project.
In order to submit a “Qualifying Binding Bid,” prior to 4:00 p.m. CDT on December 1, 2025 (the “SRF Submission Deadline”), a potential shipper must submit, in addition to its executed confidentiality agreement, a completed Service Request Form (“SRF”) in the form included with this notice and executed by an officer or other authorized representative of such potential shipper. In its SRF, a potential shipper will have the option to select service at the applicable recourse reservation rate or to propose a negotiated reservation rate. A potential shipper may also indicate in its SRF whether it is proposing any contract extensions or requests to amend the receipt or delivery points set forth in existing transportation contracts, as part of its bid.
To the extent a potential shipper has any minimum contract quantity below which it does not desire to participate in the Project or any contingencies to its bid, it should so indicate in the "Additional Information" section of the SRF. If it is necessary to allocate Project capacity, and a potential shipper does not receive the minimum contract quantity requested, Tennessee will notify such potential shipper and its request will be deemed null and void.
Potential shippers should submit bids to:
Tennessee Gas Pipeline Company, L.L.C.
Attention: Stuart Neck
Email: tgpbidroom@kindermorgan.com AND stuart_neck@kindermorgan.com
Tennessee has executed binding precedent agreements with a Foundation Shipper (as defined below) for the Project (the “Original Foundation Shipper”). Notwithstanding anything to the contrary that may be set forth herein, the Original Foundation Shipper's executed precedent agreements represent a Qualifying Binding Bid in the Open Season.
A shipper, or a group of affiliated shippers, may qualify as a “Foundation Shipper” for the Project by: (a) prior to the close of the Open Season, executing one or more precedent agreements that contain terms and conditions that are acceptable to Tennessee and provide, among other things, that each party to each such precedent agreements will execute a service agreement or service agreements under Tennessee's Rate Schedule FT-A that contemplate a minimum collective transportation quantity (“TQ”) of 29,000 Dth/day and a minimum primary term of 10 years; and (b) satisfying Tennessee's creditworthiness or credit support requirements as set forth in each such shipper's executed precedent agreement(s).
Subject to obtaining any required approvals from the Federal Energy Regulatory Commission (“FERC”), Foundation Shipper benefits may include a right to extend the primary term of the gas transportation agreement(s) to be executed pursuant to the Foundation Shipper's precedent agreement(s) and, if such right is exercised, a right, at the end of such extended primary term(s), to further extend such gas transportation agreement(s) pursuant to a contractual right of first refusal, and other mutually agreeable provisions to be negotiated on a not unduly discriminatory basis.
Participation in the Open Season shall be considered binding on the bidders upon submission of their Qualifying Binding Bids. As outlined above, Tennessee has also entered into binding precedent agreements with the Original Foundation Shipper that constitute a Qualifying Binding Bid in the Open Season. To the extent Tennessee receives Qualifying Binding Bids for greater than the Project capacity, Tennessee reserves the right to proceed with the Project as contemplated and address requests for excess capacity in a subsequent project and/or open season.
Following the SRF Submission Deadline, Tennessee will evaluate the Qualifying Binding Bids on a total net present value (“NPV”) basis using the following factors:
NPV = En [R*(1 / (1+i)**n)]
En = summation of months 1 through n (Sigma)
n = term in months
R = incremental firm monthly reservation revenue
i = monthly discount factor of 0.8333%
The term in months ("n") will be no more than 240 months. For bidders proposing a reservation rate or other form of revenue guarantee for service subject to cost-based rates, which exceeds the maximum applicable reservation rate during all or any portion of the term proposed by the bidder, the NPV calculated for the bid may not exceed an NPV that is calculated assuming that the maximum applicable reservation rate shall be in effect during the full term proposed by the bidder, in place of the reservation rate(s) or other revenue guarantee(s) proposed by the bidder. Further, notwithstanding anything herein to the contrary, Tennessee's NPV calculation shall take into account, among other things, the value of contract extensions or amendments that may be proposed as part of a Qualifying Binding Bid.
Tennessee will award the Project capacity to the potential shipper(s) submitting the Qualifying Binding Bid(s) with the highest NPV (calculated as described above) in accordance with the process outlined below. If any potential shipper submits a Qualifying Binding Bid with a higher NPV than that of the Original Foundation Shipper, then the Original Foundation Shipper shall have a one-time right to match or beat such bid by providing written notice of such election to Tennessee within five business days of receiving notice from Tennessee of the Qualifying Binding Bid(s) with the higher NPV. To the extent the Original Foundation Shipper elects to beat any such higher NPV Qualifying Binding Bid, the Original Foundation Shipper shall be awarded 100% of its TQ under the Original Foundation Shipper's precedent agreements. If the Original Foundation Shipper elects to match any higher NPV Qualifying Binding Bid, then, as between Qualifying Binding Bids of equal NPV, Project capacity shall be awarded first to Foundation Shippers, on a pro-rata basis, then, to the extent Project capacity remains available, to non-Foundation Shippers. Subject to the Original Foundation Shipper's right to beat or match higher NPV Qualifying Binding Bids as described above, as between bids of equal NPV, Project capacity shall be awarded first to Foundation Shippers on a pro-rata basis, then, to the extent Project capacity remains available, to non-Foundation Shippers on a pro-rata basis.
Potential shippers submitting Qualifying Binding Bids shall be informed of whether they were awarded Project capacity within ten days of the SRF Submission Deadline. If potential shippers other than the Original Foundation Shipper are awarded Project capacity (each a “Winning Shipper”), Tennessee will provide each such Winning Shipper with a form of precedent agreement for the Project. Tennessee and each Winning Shipper shall have three weeks from the date that Tennessee provides a form precedent agreement to such Winning Shipper (the “PA Execution Period”) in which to execute a Project precedent agreement. Each executed precedent agreement shall be in substantially the form provided by Tennessee and shall contemplate, among other things, mutually agreeable project rates and credit assurance provisions. Further, if a Winning Shipper is to qualify as a Foundation Shipper, such Winning Shipper's precedent agreement must also meet all the requirements for Foundation Shipper precedent agreements set forth above. If a Winning Shipper does not execute a Project precedent agreement meeting the requirements set forth herein within the PA Execution Period, then Tennessee may consider such Winning Shipper's bid to be null and void, and Tennessee thereafter reserves the right to award such Winning Shipper's Project capacity to other shippers.
Service for the shippers awarded Project capacity will be provided under Tennessee's Rate Schedule FT-A, and other applicable provisions of Tennessee's Tariff.
In addition to the applicable recourse rate or negotiated rate selected by each Project shipper, and unless otherwise agreed by such shipper and Tennessee as set forth in such shipper's precedent agreement(s), each such shipper shall also be subject to: (1) the applicable Rate Schedule FT-A applicable base commodity rate; (2) the applicable Rate Schedule FT-A Fuel and Loss Retention Percentage and Electric Power Cost Rates; and (3) all other applicable surcharges as set forth in Tennessee's Tariff.
Tennessee reserves the following rights, in addition to all other rights that Tennessee may have pursuant to this Open Season notice, its Tariff, and FERC policies:
(1) the right, at any time during the Open Season, upon notice and in its sole discretion, to terminate the Open Season, to extend the SRF Submission Deadline or the PA Execution Period, or to modify the Open Season;
(2) the right to clarify and finalize bids containing non-specific and/or ambiguous bid information (including, without limitation, rate, term, and receipt or delivery points) or discrepancies in bid information, provided that Tennessee shall have no obligation to do;
(3) the right to reject, on a not unduly discriminatory basis, any bid, including any bid that, in Tennessee's sole determination, is incomplete, is inconsistent with the terms of the Open Season, contains additions or modifications to the terms of the Open Season, is otherwise deficient in any respect (including failure to execute a precedent agreement in a form acceptable to Tennessee within the PA Execution Period or to provide credit support as Tennessee deems necessary), requests service outside the scope of the Open Season, or that specifies receipt or delivery points outside of the Project Path; and
(4) the right to not award any portion of the Project capacity (provided that such decision not to award such Project capacity is consistent with any applicable terms of the Original Foundation Shipper's precedent agreements).
The Open Season is subject to all applicable laws, orders, rules, and regulations of authorities having jurisdiction. No request for service shall be binding on Tennessee unless and until a duly authorized officer or other representative of both the requesting party and Tennessee have executed a binding precedent agreement.
Following submission of an executed confidentiality agreement, potential shippers may be contacted by Tennessee's Credit Department for further evaluation of their creditworthiness. Tennessee will conduct credit evaluations of potential shippers in accordance with any applicable provisions of Article XXVI, Section 4.3 of the GT&C of Tennessee's Tariff. Additionally, in the event a potential shipper is deemed non-creditworthy by Tennessee, the potential shipper must provide to Tennessee, as part of any binding agreement, credit assurance applicable to the Project, in form and substance acceptable to Tennessee in its sole discretion. Such creditworthiness requirements shall remain in effect during the term of each binding precedent agreement, as well as the term of shipper's transportation agreement(s) to be executed pursuant to such precedent agreement.
Any existing shipper that currently holds firm transportation capacity on Tennessee that it believes (subject to Tennessee's evaluation and confirmation in its sole discretion) could be used in lieu of a portion(s) of the proposed Project capacity, as defined and accepted by Tennessee, is invited to notify Tennessee of its desire to permanently relinquish its capacity for use in the Project. Any shipper that desires to turn back such capacity must notify Tennessee, in writing, of the TQ, term, receipt point(s), delivery point(s), contract number(s), the reservation rate at which the shipper is willing to release the capacity back to Tennessee, and any other relevant information necessary to effectuate the permanent relinquishment of such capacity. In order for Tennessee to consider any anticipated turnbacks of capacity, such notification must be received by Tennessee by 4:00 PM CDT on December 1, 2025. This solicitation of turnback capacity is not binding on Tennessee. Turnback requests are subject to rejection or proration based upon the results of the Open Season and this turnback capacity solicitation as determined by Tennessee in its sole discretion. Tennessee must remain economically indifferent between the turnback offer and the proposed Project. To the extent Tennessee accepts a shipper's turnback request, the shipper turning back capacity shall remain responsible for any difference between the rate at which the capacity is turned back to Tennessee and the reservation rate under the Project shipper(s)'s firm transportation service agreement with Tennessee for the remaining term of the turnback shipper's firm transportation service agreement, but will not be responsible for any commodity charges, ACA, F&LR charges, or any other authorized usage surcharges associated with the turnback capacity, and such shipper shall not be entitled to any credits associated with such capacity.
Tennessee reserves the right to reject, in its sole discretion, any turnback requests that are incomplete, contain modifications to the terms of the 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.
If you have any questions regarding the Open Season, please contact the following:
Stuart Neck
713-420-5176
stuart_neck@kindermorgan.com
Adriene Reid
713-369-8413
adriene_reid@kindermorgan.com
For media inquiries, please contact:
Taylor Smith
713-420-2335
Taylor_smith3@kindermogan.com
South Texas Enhancement Project
Service Request Form
Shipper Information:
Company
(Legal name of entity): ______________________________________________
Primary Contact : ______________________________________________
Title: ______________________________________________
Address: ______________________________________________
Telephone: ______________________________________________
Fax: ______________________________________________
Email: ______________________________________________
Capacity Path:
Receipt Point(s) [1]
Quantity (Dth/day)
Delivery Point(s)
Quantity (Dth/day)[1]
[1] The sum of receipt point quantities must equal the sum of delivery point quantities.
Primary Term: _____________ from Commencement Date
Monthly Reservation Rate Information:
□ Recourse Rate □ Negotiated Rate: ________
Additional Information to Clarify Service Request (if a shipper would like to propose any extensions of or amendments to existing contracts in connection with its bid, such proposals may be described here):
_____________________________________________________________________________ _____________________________________________________________________________
_____________________________________________________________________________
Financial and/or Credit Information:
□ Attached □ Sent Separately
Submitted by:
Name: ______________________________________________
Signature: ______________________________________________
Signature of Duly Authorized Officer or Representative
Date: ______________________________________________
Please return this form to:
1001 Louisiana Street
Houston, TX 77002
Phone: 713-420-2230
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 Tennessee Gas Pipeline Company, L.L.C., a Delaware limited liability company (“TGP”). TGP 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, TGP has held or is holding an open season (the “Open Season”) for TGP's proposed South Texas Enhancement 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 TGP 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 TGP 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.
TGP has executed precedent agreements for Project capacity with an original foundation shipper that constitutes a qualifying bid of such original foundation shipper in the Open Season. Pursuant to the terms of such precedent agreements and the Open Season notice, the original foundation shipper has a right to match or beat any qualifying bids received by TGP during the Open Season with a higher net present value than such original foundation shipper's bid. Accordingly, notwithstanding anything herein to the contrary, the Parties agree that TGP shall have the right to provide to such original foundation shipper any information (including Confidential Information) of Counterparty that is necessary to enable to such original foundation shipper to exercise such right to beat or match Open Season bids.
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 the Receiving Party and its Representatives shall not be required to return or destroy: (i) any Confidential Information that is incorporated into presentation information provided to the management of the Receiving Party or its Affiliates or Representatives may be retained by Receiving Party or such Affiliates or Representatives 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, in which event the Confidential Information shall 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 Disclosing Party or destroyed as aforesaid; and (iii) 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 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 TGP. 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 TGP:
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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