in its Service Agreements may be impaired, resulting in an interruption in

service. If this happens, capacity will be allocated pursuant to Section 5 of

the General Terms and Conditions of this FERC Gas Tariff. Shipper agrees to

indemnify and hold Freebird harmless for any loss caused by any such

interruption in service.


 

11. TITLE AND RISK OF LOSS

11.1 Shipper warrants for itself, its successors and assigns, that that it

will have good title to all Gas delivered to Freebird, at the time of delivery

of such Gas to the Storage Facility (for any reason, including, without

limitation, for storage service and/or loan payback) and that the Gas it

delivers hereunder shall be free and clear of all liens, encumbrances, or

claims whatsoever; and that it will indemnify Freebird and save it harmless

from all claims, suits, actions, damages, costs and expenses arising directly

or indirectly from or with respect to the title and/or right to Gas tendered

to Freebird hereunder. Except in those instances when Freebird expressly

takes title to Shipper’s Gas pursuant to its rights under this Gas Tariff, a

Service Agreement or as otherwise allowed by law, Shipper shall at all times

retain title to all Gas delivered by Shipper for its own account to the

Storage Facility (except Gas delivered by Shipper as fuel or loan payback),

provided, however, that such Gas may be commingled with other Gas in the

Storage Facility (subject to Section 11.3 below).


 

11.2 Shipper shall be in control and possession of the Gas prior to and

including the time of its delivery to Freebird at the Point of

Injection/Withdrawal and at the time of and after redelivery by Freebird to

Shipper at the Point of Injection/Withdrawal. Shipper shall bear the risk of

loss or contamination of such Gas (i) while the gas is in the control and

possession of Shipper or its designated Transporter, (ii) resulting from any

Force Majeure event described in Section 15 and any failure of equipment

resulting therefrom, except to the extent any loss or contamination of Gas is

caused by Freebird’s intentional or negligent act or omission, and (iii)

resulting from any third party action or inaction, and Shipper shall indemnify

and hold Freebird harmless from any damage or injury caused thereby. Freebird

shall be in control and possession of the Gas after the receipt of the same at

the Point of Injection/Withdrawal and until redelivery by Freebird to Shipper

at the Point of Injection/Withdrawal. The risk of loss or contamination of

Gas injected into, parked or stored in and withdrawn from storage shall remain

with Shipper, and Freebird shall not be liable to Shipper for any loss or

contamination of Gas, except to the extent caused by the intentional or

negligent acts or omissions of Freebird. Any losses or contamination of Gas,

unless due to the intentional or negligent act or omissions of Freebird, shall

be shared proportionally by all Shippers, based on each Shipper’s Storage

Inventory, Park Balance and/or Loan Balance, as applicable. In the event of

loss or contamination of Gas for which Freebird is responsible under this

Section 11.2, Freebird shall have the option, in its sole discretion, to

either (a) pay Shipper for such Gas (at the then current market value as

determined in accordance with the applicable Reference Price) or (b) replace

such Gas with an equivalent quantity of Gas. In no event will Freebird’s

liability for any loss or contamination of Gas exceed the current market value

of the Gas at the time of such loss or contamination.


 

11.3 The Parties acknowledge and agree that gas which is delivered to the

Storage Facility pursuant to any Service Agreement is a fungible good as that

term is defined in Ala. Code § 7-1-201(18), and that the unit of gas is one

(1) Dth. Shipper understands and agrees that any gas delivered shall be

commingled with all other gas previously or subsequently delivered and stored

at the Storage Facility. "Receipts" (as that term is used in Ala. Code §

7-7-207(b)) shall be based on confirmations of delivery by the Transporter

delivering gas to the Storage Facility. Freebird will not be

obligated to deliver to Shipper