Acceptance Tests. (a) Contractor shall not commence the Acceptance Tests for a Unit or the Facility until such Unit or the Facility has achieved Mechanical Completion. Notwithstanding anything contained in the immediately preceding sentence to the contrary, Contractor shall be permitted to run tests on individual items of equipment for purposes of (i) verifying Subcontractor requirements, (ii) satisfying emissions requirements; provided, however, that (A) such equipment can be run without damage to the Facility or any property and without injury to any other person and (B) Contractor shall not, by virtue of performing such tests, be relieved of any of its obligations under this Agreement, including without limitation, the obligations to demonstrate that the Facility can be operated in compliance with all Laws. In preparing for the performance of the Acceptance Tests, Contractor shall reasonably cooperate with Power Purchaser, Operator and the natural gas supplier(s) for purposes of scheduling, safety, coordination of activities and similar matters. Contractor shall perform the Acceptance Tests at its sole expense, with all costs thereof payable out of the Contract Price, except for costs of Consumables provided by Owner pursuant to Section 4.1 and the operating personnel provided by Owner pursuant to Section 4.6. Contractor shall provide a Notice to Owner at least twenty (20) Days prior to the date that Contractor expects the Work to be ready for each Acceptance Tests (the "Acceptance Testing Notice"). (i) Contractor shall conduct the Performance Tests as described in Exhibit A to verify compliance of each Unit with the Performance Guarantees. If the Performance Tests demonstrate that the Performance Guarantees have been met, Contractor shall tender such Unit to Owner, subject to the satisfaction of the other requirements for Substantial Completion, and Owner shall pay to Contractor the bonuses, if any, set forth in Section 12.4(c) within thirty (30) Days of receiving a written invoice therefor from Contractor. (ii) If the Performance Tests demonstrate that any of the Performance Guarantees have not been met, Contractor shall diligently take corrective action until subsequent Performance Tests demonstrate that all Performance Guarantees have been met or Contractor has tendered the Unit pursuant to clause (iii) below. During this period, Contractor may repeat the Performance Tests as many times as necessary to achieve the Performance Guarantees, subject to the limitations set forth in clause (iv) below. In any event, Contractor shall continue to pay Delay Liquidated Damages, if applicable, in accordance with Section 12.2. (iii) If Contractor (A) causes a Unit to achieve a performance level of at least (1) 96.25% of the Unit Power Output Guarantee on a per Unit basis, (2) 94.25% of the Maximum Unit Power Output Guarantee on a per Unit basis and (3) 104.25% of the Unit Heat Rate Guarantee on a per Unit basis (the "Performance Minimums") and (B) has satisfied the other requirements for Substantial Completion, Contractor may declare Substantial Completion. Commercial Tolerance Bands shall not be applied to the measurements or calculations regarding Performance Minimums. (iv) If (x) Contractor causes a Unit to achieve the Performance Minimums pursuant to clause (iii) above and Substantial Completion has been achieved, and (y) the Date Certain has not yet occurred, Contractor shall have an opportunity to prepare and present to Owner a plan to achieve the Performance Guarantees, which plan shall be consistent with the operational requirements of the Facility and in accordance with the requirements of the Agreement (the "Remedial Plan"). The Remedial Plan shall be prepared in consultation with Owner, shall be presented within 30 days after the achievement of the Substantial Completion and shall detail the corrective measures which Contractor proposes to take to achieve the Performance Guarantees, the manner in which such corrective measures will be implemented, the proposed schedule for the implementation of such corrective measures, including the required outage duration ("Cure Outage"), and the proposed period of time (the "Plan Period") necessary to effect such corrective measures (which period of time shall not in any event extend beyond the date that is twelve (12) months after the Guaranteed Completion Date, provided, however, in the event that: (A) the time necessary for Contractor to prepare for the implementation of the cure, despite the exercise of due diligence, does not permit the implementation of such cure during a planned outage prior to the expiration of such twelve (12) month period; or (B) the next available planned outage that Owner agrees to permit Contractor to implement the cure occurs after the expiration of such twelve (12) month period; or (C) the outage utilized for implementation of the cure extends beyond the expiration of such twelve (12) month period; then the expiration of such twelve (12) month period shall be extended until the completion of both the implementation of such cure and the required performance testing. Contractor agrees to schedule the Cure Outage during planned outages mutually agreed upon by the Parties and Contractor agrees to take reasonable actions to minimize the duration of any such Cure Outage. If the Unit is out of service on an unscheduled basis, Contractor, subject to Owner's consent, such consent not to be unreasonably withheld, may be given access to the Unit to implement such cure. Owner shall provide Contractor the opportunity to make the necessary corrections and to reperform such Performance Guarantee Tests, consistent with the operational requirements of the Facility and the planned outage schedule. In the event that the Cure Outage must be scheduled after the expiration of the original twelve (12) month period described above, Owner agrees to pay Contractor the unpaid balance of the Contractor Price upon the expiration of such period and receipt of an irrevovable unconditional letter of credit in such amount as Owner is entitled to retain under the terms of the Agreement. Contractor shall proceed with due diligence to implement the Remedial Plan and use reasonable efforts to achieve the Performance Guarantees. Contractor shall review any material revisions to the Remedial Plan with the Owner. If any revisions to the Remedial Plan require an extension of the outage beyond the expiration of the Cure Outage, Contractor shall pay Owner Delay Liquidated Damages at the rates and on the terms set forth in Section 12.2 for the period of such extension. If Contractor elects not to attempt a cure, Contractor shall so advise Owner and shall immediately pay the applicable Performance Liquidated Damages in accordance with Section 12 4(c) hereof. At the end of the Plan Period, Contractor shall pay the Performance Liquidated Damages calculated in accordance with Section 12.4(c) hereof. (v) Notwithstanding the foregoing, if Contractor has not achieved the Performance Guarantees by the Date Certain, Contractor shall immediately pay to Owner the Performance Liquidated Damages calculated in accordance with Section 12.4(c) based upon the most recent Performance Test results, provided that nothing contained herein shall limit Contractor's obligation hereunder to achieve not less than the Performance Minimums. (c) Liquidated damages and bonuses shall be payable to the extent that the results of the Performance Tests differ, by a magnitude greater than the Commercial Tolerance Band, from the Performance Guarantees set forth in Exhibit A. Solely for the purpose of computing liquidated damages and bonuses under this Section 12.4(c), the applicable Commercial Tolerance Band shall be applied to the Unit Power Output (as adjusted to the Base Conditions for the Unit Power Output Test) and the Unit Power Output (as adjusted to the Base Conditions for the Maximum Unit Power Output Test) and the applicable Commercial Tolerance Band shall be applied to the adjusted Unit Heat Rate (as adjusted to the Base Conditions for the Unit Heat Rate Test). The liquidated damages and bonuses applicable to the results of the Performance Tests regarding compliance of the Facility with the Performance Guarantees are as follows, and are subject to Sections 13.1 and 13.2:
Appears in 1 contract
Samples: Turnkey Engineering, Procurement and Construction Agreement (LSP Batesville Funding Corp)
Acceptance Tests. (a) Contractor shall not commence 5.1 Within a reasonable period following the Acceptance Tests for parties entering into a Unit or the Facility until such Unit or the Facility has achieved Mechanical Completion. Notwithstanding anything contained in the immediately preceding sentence to the contrary, Contractor shall be permitted to run tests on individual items Scope of equipment for purposes of (i) verifying Subcontractor requirements, (ii) satisfying emissions requirements; provided, however, that (A) such equipment can be run without damage to the Facility or any property and without injury to any other person and (B) Contractor shall not, by virtue of performing such tests, be relieved of any of its obligations under this Agreement, including without limitationWork, the obligations Parties shall work together to demonstrate that the Facility can be operated in compliance with all Laws. In preparing for the performance agree a set of the Acceptance Tests, Contractor Test Data and Acceptance Test Criteria with respect to the applicable Developed Software which shall reasonably cooperate be sufficient to test whether or not the Developed Software has the facilities and functions specified in and performance in accordance with Power Purchaserthe Functional Specification, Operator and the natural gas supplier(s) for purposes of scheduling, safety, coordination of activities and similar matterssuch agreement not to be unreasonably withheld or delayed. Contractor Supplier shall perform the Acceptance Tests at its sole expensewithin the Test Period. Customer shall be given reasonable notice of and be entitled to attend the Acceptance Tests.
5.2 If the Developed Software process the Test Data and achieve the Acceptance Test Criteria then it shall be deemed to have passed the Acceptance Tests. Subject to paragraph 5.5, if the Developed Software fails to achieve the Acceptance Test Criteria they shall be deemed to have failed the Acceptance Tests. Customer shall co-operate with all costs thereof payable out Supplier in identifying in what respects (if any) the Developed Software has failed to pass the Acceptance Tests and identify where the Developed Software has failed to conform to the Functional Specification.
5.3 If the Supplier is unable to remedy any failure of the Contract Price, except for costs of Consumables provided by Owner pursuant to Section 4.1 and Developed Software so that the operating personnel provided by Owner pursuant to Section 4.6. Contractor shall provide a Notice to Owner at least twenty (20) Days prior to Developed Software does not pass the date that Contractor expects the Work to be ready for each Acceptance Tests or to fix any deficiency in the Developed Software to conform with the Functional Specification within a further 20 days, or such longer period as is agreed between the parties in writing (“Extended Test Period”), then Customer shall be entitled forthwith to reject the "Acceptance Testing Notice")Developed Software without further liability to Supplier.
(i) Contractor shall conduct 5.4 The written statement of Acceptance will be issued when the Performance relevant Developed Software have passed all the Acceptance Tests as described detailed in Exhibit A to verify compliance of each Unit the Acceptance Test Criteria within the timescales outlined in therein.
5.5 Save where Customer has rejected the Developed Software in accordance with the Performance Guarantees. If the Performance Tests demonstrate that the Performance Guarantees have been metparagraph 5.3, Contractor shall tender such Unit to Owner, subject to the satisfaction Customer’s Acceptance of the other requirements Developed Software shall occur at the earliest of:
(a) the Developed Software passing the Acceptance Tests;
(b) the Developed Software being used in a live environment or for Substantial Completion, commercial use; or
(c) the expiration of the Test Period and Owner (where applicable) the Extended Test Period.
5.6 Where Customer rejects the Developed Software in accordance with paragraph 5.3 then the following terms shall pay apply;
(a) Supplier shall be obliged to Contractor repay to Customer the bonuses, if any, set forth in Section 12.4(cDevelopment Fees which Customer has paid to Supplier under the applicable Scope of Work for which the rejected Developed Software relate;
(b) each party shall within thirty (30) Days days of receiving a written invoice therefor from Contractor.
such rejection return (ii) If the Performance Tests demonstrate that any of the Performance Guarantees have not been metor, Contractor shall diligently take corrective action until subsequent Performance Tests demonstrate that all Performance Guarantees have been met or Contractor has tendered the Unit pursuant to clause (iii) below. During this period, Contractor may repeat the Performance Tests as many times as necessary to achieve the Performance Guarantees, subject to the limitations set forth in clause (iv) below. In any event, Contractor shall continue to pay Delay Liquidated Damages, if applicable, in accordance with Section 12.2.
(iii) If Contractor (A) causes a Unit to achieve a performance level of at least (1) 96.25% of the Unit Power Output Guarantee on a per Unit basis, (2) 94.25% of the Maximum Unit Power Output Guarantee on a per Unit basis and (3) 104.25% of the Unit Heat Rate Guarantee on a per Unit basis (the "Performance Minimums") and (B) has satisfied the other requirements for Substantial Completionparty’s option, Contractor may declare Substantial Completion. Commercial Tolerance Bands shall not be applied to the measurements destroy) all Confidential Information in its possession or calculations regarding Performance Minimums.
(iv) If (x) Contractor causes a Unit to achieve the Performance Minimums pursuant to clause (iii) above under its control and Substantial Completion has been achieved, and (y) the Date Certain has not yet occurred, Contractor shall have an opportunity to prepare and present to Owner a plan to achieve the Performance Guarantees, which plan shall be consistent with the operational requirements of the Facility and in accordance with the requirements of the Agreement (the "Remedial Plan"). The Remedial Plan shall be prepared in consultation with Owner, shall be presented within 30 days after the achievement of the Substantial Completion and shall detail the corrective measures which Contractor proposes to take to achieve the Performance Guarantees, the manner in which such corrective measures will be implemented, the proposed schedule for the implementation all copies of such corrective measures, including the required outage duration ("Cure Outage"), and the proposed period of time (the "Plan Period") necessary to effect such corrective measures (which period of time shall not in any event extend beyond the date that is twelve (12) months after the Guaranteed Completion Date, provided, however, in the event that:
(A) the time necessary for Contractor to prepare for the implementation of the cure, despite the exercise of due diligence, does not permit the implementation of such cure during a planned outage prior to the expiration of such twelve (12) month period; or
(B) the next available planned outage that Owner agrees to permit Contractor to implement the cure occurs after the expiration of such twelve (12) month period; or
(C) the outage utilized for implementation of the cure extends beyond the expiration of such twelve (12) month period; then the expiration of such twelve (12) month period shall be extended until the completion of both the implementation of such cure and the required performance testing. Contractor agrees to schedule the Cure Outage during planned outages mutually agreed upon by the Parties and Contractor agrees to take reasonable actions to minimize the duration of any such Cure Outage. If the Unit is out of service on an unscheduled basis, Contractor, subject to Owner's consent, such consent not to be unreasonably withheld, may be given access to the Unit to implement such cure. Owner shall provide Contractor the opportunity to make the necessary corrections and to reperform such Performance Guarantee Tests, consistent with the operational requirements of the Facility and the planned outage schedule. In the event that the Cure Outage must be scheduled after the expiration of the original twelve (12) month period described above, Owner agrees to pay Contractor the unpaid balance of the Contractor Price upon the expiration of such period and receipt of an irrevovable unconditional letter of credit in such amount as Owner is entitled to retain under the terms of the Agreement. Contractor shall proceed with due diligence to implement the Remedial Plan and use reasonable efforts to achieve the Performance Guarantees. Contractor shall review any material revisions to the Remedial Plan with the Owner. If any revisions to the Remedial Plan require an extension of the outage beyond the expiration of the Cure Outage, Contractor shall pay Owner Delay Liquidated Damages at the rates and on the terms set forth in Section 12.2 for the period of such extension. If Contractor elects not to attempt a cure, Contractor shall so advise Owner and shall immediately pay the applicable Performance Liquidated Damages in accordance with Section 12 4(c) hereof. At the end of the Plan Period, Contractor shall pay the Performance Liquidated Damages calculated in accordance with Section 12.4(c) hereof.
(v) Notwithstanding the foregoing, if Contractor has not achieved the Performance Guarantees by the Date Certain, Contractor shall immediately pay to Owner the Performance Liquidated Damages calculated in accordance with Section 12.4(c) based upon the most recent Performance Test results, provided that nothing contained herein shall limit Contractor's obligation hereunder to achieve not less than the Performance Minimums.information;
(c) Liquidated damages Customer shall have no right to use the Developed Software or any part of it and bonuses shall be payable to the extent that the results remove or destroy forthwith all copies of the Performance Tests differDeveloped Software or any part thereof or, by a magnitude greater than at Supplier’s request, return all copies of the Commercial Tolerance Band, from same to Supplier; and
(d) the Performance Guarantees set forth in Exhibit A. Solely applicable Scope of Work for the purpose of computing liquidated damages and bonuses under this Section 12.4(c), the applicable Commercial Tolerance Band rejected Developed Software shall be applied to the Unit Power Output (as adjusted to the Base Conditions for the Unit Power Output Test) and the Unit Power Output (as adjusted to the Base Conditions for the Maximum Unit Power Output Test) and the applicable Commercial Tolerance Band shall be applied to the adjusted Unit Heat Rate (as adjusted to the Base Conditions for the Unit Heat Rate Test). The liquidated damages and bonuses applicable to the results of the Performance Tests regarding compliance of the Facility with the Performance Guarantees are as follows, and are subject to Sections 13.1 and 13.2:terminate.
Appears in 1 contract
Samples: Saas Subscription Agreement
Acceptance Tests. (a) 8.1 The Contractor shall not commence the at its own costs and expenses perform all Final Acceptance Tests (including without limitation testing and commissioning) in accordance with the acceptance procedures attached hereto as Annex D to meet the criteria set out in Annex D and all other acceptance tests required in relation to or pursuant to this Agreement. The Contractor shall further comply with all quality control and assurance systems of the Buyer.
8.2 The Buyer or any person authorised by the Buyer shall have the right, to inspect and test the different stages of the assembly or manufacture of the Equipment at any place where such assembly or manufacture is carried out or performed in order to ensure that the Equipment supplied is in accordance with the Specifications, Documentation and the provisions of this Agreement. The Buyer and any person authorised by the Buyer for a Unit or the Facility until this purpose shall have free, uninterrupted and safe access at all reasonable times as and when required for such Unit or the Facility has achieved Mechanical Completioninspection and testing. Notwithstanding anything contained in the immediately preceding sentence to aforementioned, the contraryreview, Contractor shall be permitted to run tests on individual items of equipment for purposes of (i) verifying Subcontractor comments, requirements, (ii) satisfying emissions requirements; providedinstructions, however, that (A) such equipment can directions or approvals made or given by the Buyer during inspection and testing at the different stages shall not be run without damage to deemed acceptance or waiver by the Facility Buyer or any property and without injury to any other person and (B) relieve the Contractor shall not, by virtue of performing such tests, be relieved of any of its responsibilities and obligations under this Agreement, including without limitation, the obligations to demonstrate that the Facility can .
8.3 The Contractor shall be operated in compliance with all Laws. In preparing responsible for the performance cost of the Acceptance Tests, Contractor shall reasonably cooperate with Power Purchaser, Operator all such inspection and the natural gas supplier(s) for purposes of scheduling, safety, coordination of activities and similar matters. Contractor shall perform the Acceptance Tests at its sole expense, with all costs thereof payable testing carried out of the Contract Price, except for costs of Consumables provided by Owner pursuant to Section 4.1 and the operating personnel provided by Owner pursuant to Section 4.6. Contractor shall provide a Notice to Owner at least twenty (20) Days prior to the date that Contractor expects the Work to be ready for each Acceptance Tests (the "Acceptance Testing Notice").
(i) Contractor shall conduct the Performance Tests as described in Exhibit A to verify compliance of each Unit with the Performance Guarantees. If the Performance Tests demonstrate that the Performance Guarantees have been met, Contractor shall tender such Unit to Owner, subject to the satisfaction of the other requirements for Substantial Completion, and Owner shall pay to Contractor the bonuses, if any, set forth in Section 12.4(c) within thirty (30) Days of receiving a written invoice therefor from Contractor.
(ii) If the Performance Tests demonstrate that any of the Performance Guarantees have not been met, Contractor shall diligently take corrective action until subsequent Performance Tests demonstrate that all Performance Guarantees have been met or Contractor has tendered the Unit pursuant to clause (iii) below. During this period, Contractor may repeat the Performance Tests as many times as necessary to achieve the Performance Guarantees, subject to the limitations set forth in clause (iv) below. In any event, Contractor shall continue to pay Delay Liquidated Damages, if applicable, in accordance with Section 12.2.
(iii) If Contractor (A) causes a Unit to achieve a performance level of at least (1) 96.25% of the Unit Power Output Guarantee on a per Unit basis, (2) 94.25% of the Maximum Unit Power Output Guarantee on a per Unit basis and (3) 104.25% of the Unit Heat Rate Guarantee on a per Unit basis (the "Performance Minimums") and (B) has satisfied the other requirements for Substantial Completion, Contractor may declare Substantial Completion. Commercial Tolerance Bands shall not be applied to the measurements or calculations regarding Performance Minimums.
(iv) If (x) Contractor causes a Unit to achieve the Performance Minimums pursuant to clause (iii) above and Substantial Completion has been achieved, and (y) the Date Certain has not yet occurred, Contractor shall have an opportunity to prepare and present to Owner a plan to achieve the Performance Guarantees, which plan shall be consistent with the operational requirements of the Facility and in accordance with the requirements Specifications, Documentation and the provisions of this Agreement and with best industry practices and of any additional inspection and testing as a result of the failure of any Equipment to meet the Specifications, Documentation and the provisions of this Agreement.
8.4 The Contractor shall give the Buyer written notice of at least seven (7) working days and afford the Buyer or its representative the full opportunity to attend all tests (including but not limited to the Conditional Acceptance tests and the Final Acceptance tests) at the Site and [7] working days if the tests are to be carried out at the premises of the Contractor.
8.5 At any time prior to delivery to the Buyer and Final Acceptance of the Equipment in accordance with the terms of this Agreement, the Buyer shall have the right to reject any part of the Equipment found to be defective with respect to the Specification, Documentation or otherwise not in accordance with this Agreement (and any such defects in any part of the "Remedial Plan")Equipment shall be corrected or replaced by the Contractor at no additional expense or delay to the Buyer. The Remedial Plan Buyer and any person authorised by the Buyer shall be prepared in consultation with Owner, shall be presented within 30 days after the achievement entitled to re-inspect and re-test such part of the Substantial Completion Equipment.
8.6 The failure of the Buyer to inspect or condemn or reject any Equipment or otherwise to exercise any right entrusted to the Buyer shall not excuse the Contractor from the performance of this Agreement nor shall such action or inspection imply any Conditional Acceptance, Final Acceptance or any acceptance in any manner whatsoever by the Buyer of faulty or unsatisfactory Equipment or part thereof.
8.7 The Contractor shall notify the Buyer in writing when the Contractor has completed or anticipates completing delivery of the Equipment for Final Acceptance. The Parties shall (where applicable) carry out a joint inspection and/or performance of such Equipment or part thereof. Within seven (7) working days thereafter, the Buyer shall notify the Contractor in writing of any defects in the Equipment or part thereof or such other defects which the Buyer may discover. The Contractor shall immediately rectify defects notified to it and shall detail invite the corrective measures which Contractor proposes Buyer or persons authorised by the Buyer to take re-inspect or re-test the Equipment so rectified. The failure of the Buyer to achieve the Performance Guarantees, the manner in which such corrective measures will be implemented, the proposed schedule for the implementation of such corrective measures, including the required outage duration ("Cure Outage"), and the proposed period of time (the "Plan Period") necessary to effect such corrective measures (which period of time issue any notice shall not in any event extend beyond way relieve the Contractor of its obligation to supply the Equipment, to rectify any defects therein and to perform its warranty and guarantee obligations in respect thereof.
8.8 Final Acceptance of the Equipment will take place on the date that is twelve (12) months after the Guaranteed Completion Date, provided, however, in the event that:
(A) the time necessary for Contractor to prepare for the implementation of the cure, despite written acknowledgement by the Buyer to the Contractor of its Final Acceptance of the Equipment. The Buyer’s written acknowledgement of its Final Acceptance will be evidenced by the Buyer’s signing and issue of the Final Acceptance Certificate.
8.9 The Conditional Acceptance and/or Final Acceptance of the Equipment thereof shall not prejudice or act as an estoppel against the exercise of due diligenceany right of the Buyer in this Agreement, including but not limited to the right to require the Equipment or any part thereof to be repaired, replaced, or to claim for breach or any non-compliance.
8.10 The Buyer may effect Conditional Acceptance of the Equipment notwithstanding any minor non-conformity to the Specifications provided the Buyer, in its sole discretion, determines that such nonconformity does not permit impair the implementation safe or efficient operation of the Equipment or is minor or unsubstantial. The Buyer’s written acknowledgement of its Conditional Acceptance will be evidenced by the Buyer’s signing and issue of the Conditional Acceptance Certificate. The Contractor shall remain obliged to and shall use its best endeavours to correct or remedy such nonconformity as soon as practicable. The value of such cure during a planned outage prior to non-conformity shall be determined by the expiration of such twelve (12) month period; or
(B) Buyer in its sole discretion and an amount equal thereto shall be withheld from the next available planned outage that Owner agrees to permit Contractor to implement instalment payable by the cure occurs after the expiration of such twelve (12) month period; or
(C) the outage utilized for implementation of the cure extends beyond the expiration of such twelve (12) month period; then the expiration of such twelve (12) month period Buyer. Such amount shall be extended until the completion of both the implementation of such cure and the required performance testing. Contractor agrees to schedule the Cure Outage during planned outages mutually agreed upon paid by the Parties and Contractor agrees Buyer when the relevant nonconformity shall have been demonstrated to take reasonable actions to minimize the duration of any such Cure Outage. If the Unit is out of service on an unscheduled basis, Contractor, subject to Owner's consent, such consent not to be unreasonably withheld, may be given access to the Unit to implement such cure. Owner shall provide Contractor the opportunity to make the necessary corrections and to reperform such Performance Guarantee Tests, consistent with the operational requirements of the Facility and the planned outage schedule. In the event that the Cure Outage must be scheduled after the expiration of the original twelve (12) month period described above, Owner agrees to pay Contractor the unpaid balance of the Contractor Price upon the expiration of such period and receipt of an irrevovable unconditional letter of credit in such amount as Owner is entitled to retain under the terms of the Agreement. Contractor shall proceed with due diligence to implement the Remedial Plan and use reasonable efforts to achieve the Performance Guarantees. Contractor shall review any material revisions to the Remedial Plan with the Owner. If any revisions to the Remedial Plan require an extension of the outage beyond the expiration of the Cure Outage, Contractor shall pay Owner Delay Liquidated Damages at the rates and on the terms set forth in Section 12.2 for the period of such extension. If Contractor elects not to attempt a cure, Contractor shall so advise Owner and shall immediately pay the applicable Performance Liquidated Damages in accordance with Section 12 4(c) hereof. At the end of the Plan Period, Contractor shall pay the Performance Liquidated Damages calculated in accordance with Section 12.4(c) hereofhave been corrected or remedied accordingly.
(v) Notwithstanding the foregoing, if Contractor has not achieved the Performance Guarantees by the Date Certain, Contractor shall immediately pay to Owner the Performance Liquidated Damages calculated in accordance with Section 12.4(c) based upon the most recent Performance Test results, provided that nothing contained herein shall limit Contractor's obligation hereunder to achieve not less than the Performance Minimums.
(c) Liquidated damages and bonuses shall be payable to the extent that the results of the Performance Tests differ, by a magnitude greater than the Commercial Tolerance Band, from the Performance Guarantees set forth in Exhibit A. Solely for the purpose of computing liquidated damages and bonuses under this Section 12.4(c), the applicable Commercial Tolerance Band shall be applied to the Unit Power Output (as adjusted to the Base Conditions for the Unit Power Output Test) and the Unit Power Output (as adjusted to the Base Conditions for the Maximum Unit Power Output Test) and the applicable Commercial Tolerance Band shall be applied to the adjusted Unit Heat Rate (as adjusted to the Base Conditions for the Unit Heat Rate Test). The liquidated damages and bonuses applicable to the results of the Performance Tests regarding compliance of the Facility with the Performance Guarantees are as follows, and are subject to Sections 13.1 and 13.2:
Appears in 1 contract
Samples: Purchase Agreement
Acceptance Tests. (a) Contractor Each Party shall cooperate with the other Party to perform its own interim integration, stress, and other acceptance tests for the Nasdaq Application to ensure operability and compliance with the Specifications. Acceptance tests by Nasdaq shall include certain quality control and stress tests conducted after the completion of the Installation Schedule that are customary and routine to the Nasdaq Stock Market and may include End-User testing (the "Nasdaq QC Tests"). Upon successful completion of the Nasdaq QC Tests, Nasdaq shall execute and deliver to OptiMark a Certificate of Acceptance, indicating its acceptance of the Nasdaq Application. Anything herein to the contrary notwithstanding, the Parties agree that final responsibility for declaring the Nasdaq Application ready for operation remains with Nasdaq.
(b) Interim acceptance tests may be performed by either Party, which shall indicate the relevant stage, component or configuration which is being accepted. Preliminary acceptance or necessary modification thereto shall be agreed to by the Parties within the specified time period as provided in the Specifications. Anything herein to the contrary notwithstanding, the Parties agree that a Party's testing or acceptance of any interim stage, component or configuration shall not commence the Acceptance Tests for a Unit be deemed to be acceptance of that stage, component or configuration during any subsequent interim test or the Facility until such Unit Nasdaq QC Test, nor act as a waiver or estoppel to perform other tests, or the Facility has achieved Mechanical Completion. Notwithstanding anything contained in Nasdaq QC Tests on any stage, component or configuration of the immediately preceding sentence final Nasdaq Application.
(c) If the Nasdaq Application fails to the contrary, Contractor shall be permitted to run tests on individual items of equipment for purposes of meet any applicable Nasdaq QC Test and if such failure did not result from (i) verifying Subcontractor requirements, material failure of the Nasdaq portion of the Nasdaq Application to meet relevant parts of the Specifications or (ii) satisfying emissions requirements; providedNasdaq controlled conditions which were foreseeable to Nasdaq but undisclosed to OptiMark such that it was not commercially reasonable for OptiMark to react to such, howeverNasdaq shall promptly notify OptiMark in writing of such failure and OptiMark shall correct, that (A) such equipment can be run without damage modify or improve its work, as the case may be, to meet the Facility or any property and without injury to any other person and (B) Contractor shall not, by virtue of performing such tests, be relieved of any of its obligations under this Agreement, including without limitation, the obligations to demonstrate that the Facility can be operated in compliance with all Laws. In preparing for the performance of the Acceptance Tests, Contractor shall reasonably cooperate with Power Purchaser, Operator and the natural gas supplier(s) for purposes of scheduling, safety, coordination of activities and similar matters. Contractor shall perform the Acceptance Tests at its sole expense, with all costs thereof payable out of the Contract Price, except for costs of Consumables provided by Owner pursuant to Section 4.1 and the operating personnel provided by Owner pursuant to Section 4.6. Contractor shall provide a Notice to Owner at least twenty (20) Days prior to the date that Contractor expects the Work to be ready for each Acceptance Tests (the "Acceptance Testing Notice").
(i) Contractor shall conduct the Performance Tests as described in Exhibit A to verify compliance of each Unit with the Performance Guarantees. If the Performance Tests demonstrate that the Performance Guarantees have been met, Contractor shall tender such Unit to Owner, subject to the satisfaction of the other requirements for Substantial Completion, and Owner shall pay to Contractor the bonuses, if any, criteria set forth in Section 12.4(c) the applicable Nasdaq QC Test within thirty (30) Days of receiving a written invoice therefor from Contractor.
(ii) If the Performance Tests demonstrate that any of the Performance Guarantees have not been met, Contractor shall diligently take corrective action until subsequent Performance Tests demonstrate that all Performance Guarantees have been met or Contractor has tendered the Unit pursuant to clause (iii) below. During this period, Contractor may repeat the Performance Tests as many times as reasonable time frame necessary to achieve meet the Performance Guarantees, subject to Critical Milestone Operational Commencement Date. Nasdaq shall thereafter reinitiate and complete one or more additional rounds of Nasdaq QC Tests until such time as when OptiMark either passes the limitations set forth in clause (iv) below. In any event, Contractor shall continue to pay Delay Liquidated Damages, if applicableNasdaq QC Tests or the Critical Milestone Date passes, in accordance with Section 12.2.
(iii) If Contractor (A) causes a Unit to achieve a performance level of at least (1) 96.25% of the Unit Power Output Guarantee on a per Unit basis, (2) 94.25% of the Maximum Unit Power Output Guarantee on a per Unit basis and (3) 104.25% of the Unit Heat Rate Guarantee on a per Unit basis (the "Performance Minimums") and (B) has satisfied the other requirements for Substantial Completion, Contractor which case Nasdaq may declare Substantial Completion. Commercial Tolerance Bands shall not be applied to the measurements or calculations regarding Performance Minimums.
(iv) If (x) Contractor causes a Unit to achieve the Performance Minimums pursuant to clause (iii) above and Substantial Completion has been achieved, and (y) the Date Certain has not yet occurred, Contractor shall have an opportunity to prepare and present to Owner a plan to achieve the Performance Guarantees, which plan shall be consistent with the operational requirements of the Facility and in accordance with the requirements of the Agreement (the "Remedial Plan"). The Remedial Plan shall be prepared in consultation with Owner, shall be presented within 30 days after the achievement of the Substantial Completion and shall detail the corrective measures which Contractor proposes to take to achieve the Performance Guarantees, the manner in which such corrective measures will be implemented, the proposed schedule for the implementation of such corrective measures, including the required outage duration ("Cure Outage"), and the proposed period of time (the "Plan Period") necessary to effect such corrective measures (which period of time shall not in any event extend beyond the date that is twelve (12) months after the Guaranteed Completion Date, provided, however, in the event that:
(A) the time necessary for Contractor to prepare for the implementation of the cure, despite the exercise of due diligence, does not permit the implementation of such cure during a planned outage prior to the expiration of such twelve (12) month period; or
(B) the next available planned outage that Owner agrees to permit Contractor to implement the cure occurs after the expiration of such twelve (12) month period; or
(C) the outage utilized for implementation of the cure extends beyond the expiration of such twelve (12) month period; then the expiration of such twelve (12) month period shall be extended until the completion of both the implementation of such cure and the required performance testing. Contractor agrees to schedule the Cure Outage during planned outages mutually agreed upon by the Parties and Contractor agrees to take reasonable actions to minimize the duration of any such Cure Outage. If the Unit is out of service on an unscheduled basis, Contractor, subject to Owner's consent, such consent not to be unreasonably withheld, may be given access to the Unit to implement such cure. Owner shall provide Contractor the opportunity to make the necessary corrections and to reperform such Performance Guarantee Tests, consistent with the operational requirements of the Facility and the planned outage schedulethereafter terminate this Agreement. In the event that the Cure Outage must be scheduled after failure to pass the expiration of the original twelve (12) month period described above, Owner agrees to pay Contractor the unpaid balance of the Contractor Price upon the expiration of such period and receipt of an irrevovable unconditional letter of credit in such amount as Owner is entitled to retain under the terms of the Agreement. Contractor shall proceed with due diligence to implement the Remedial Plan and use reasonable efforts to achieve the Performance Guarantees. Contractor shall review any material revisions to the Remedial Plan with the Owner. If any revisions to the Remedial Plan require an extension of the outage beyond the expiration of the Cure Outage, Contractor shall pay Owner Delay Liquidated Damages at the rates and on the terms set forth in Section 12.2 for the period of such extension. If Contractor elects not to attempt a cure, Contractor shall so advise Owner and shall immediately pay the applicable Performance Liquidated Damages in accordance with Section 12 4(c) hereof. At the end of the Plan Period, Contractor shall pay the Performance Liquidated Damages calculated in accordance with Section 12.4(c) hereof.
(v) Notwithstanding the foregoing, if Contractor has not achieved the Performance Guarantees Nasdaq QC Test by the Critical Milestone Date Certainis a result of (i) or (ii) of this sub-section, Contractor shall immediately pay to Owner the Performance Liquidated Damages calculated in accordance with Section 12.4(c) based upon the most recent Performance Test results, provided that nothing contained herein shall limit Contractor's obligation hereunder to achieve not less than the Performance Minimumsthen OptiMark may thereafter terminate this Agreement.
(c) Liquidated damages and bonuses shall be payable to the extent that the results of the Performance Tests differ, by a magnitude greater than the Commercial Tolerance Band, from the Performance Guarantees set forth in Exhibit A. Solely for the purpose of computing liquidated damages and bonuses under this Section 12.4(c), the applicable Commercial Tolerance Band shall be applied to the Unit Power Output (as adjusted to the Base Conditions for the Unit Power Output Test) and the Unit Power Output (as adjusted to the Base Conditions for the Maximum Unit Power Output Test) and the applicable Commercial Tolerance Band shall be applied to the adjusted Unit Heat Rate (as adjusted to the Base Conditions for the Unit Heat Rate Test). The liquidated damages and bonuses applicable to the results of the Performance Tests regarding compliance of the Facility with the Performance Guarantees are as follows, and are subject to Sections 13.1 and 13.2:
Appears in 1 contract
Samples: Nasdaq/Optimark Agreement (Optimark Technologies Inc)
Acceptance Tests. 3.1 If any acceptance tests are specified in the Schedule (athe Acceptance Tests) then the Contractor shall perform such tests before delivery of the Services to the DCC. The Contractor shall give the DCC not commence less than five (5) Business Days’ notice of such Acceptance Tests and the DCC may attend the Acceptance Tests for a Unit or the Facility until such Unit or the Facility has achieved Mechanical Completionas an observer. Notwithstanding anything contained in the immediately preceding sentence to the contrary, The Contractor shall be permitted to run tests on individual items of equipment for purposes of (i) verifying Subcontractor requirements, (ii) satisfying emissions requirements; provided, however, that (A) such equipment can be run without damage to provide the Facility or any property and without injury to any other person and (B) Contractor shall not, by virtue of performing such tests, be relieved of any of its obligations under this Agreement, including without limitation, DCC with the obligations to demonstrate that the Facility can be operated in compliance with all Laws. In preparing for the performance results of the Acceptance Tests, Tests within five (5) Business Days of the same (or such other time period as agreed by the Parties).
3.2 To the extent that the Services (or any part thereof) fail their Acceptance Tests then the Contractor shall reasonably cooperate with Power Purchaserperform a root cause analysis of such failure and notify the DCC of any modifications required, Operator the time required to perform such modification and the natural gas supplier(sdate for further Acceptance Tests. Such analysis shall be provided to the DCC within five (5) for purposes Business Days of schedulingthe results.
3.3 The DCC shall notify the Contractor within five (5) Business Days of the receipt of the analysis whether:
3.3.1 It requires the Contractor to perform the modification and re-test the Services (or part thereof); or
3.3.2 It rejects the Services (or part thereof).
3.4 For the avoidance of doubt, safety, coordination where a part of activities and similar matters. the Services fails the Acceptance Tests then the DCC may reject the Services in their entirety.
3.5 Where the DCC requires the Contractor shall re-perform the Acceptance Tests then this shall be at its sole expense, with all costs thereof payable out of the Contract Price, except for costs of Consumables provided by Owner pursuant to Section 4.1 and the operating personnel provided by Owner pursuant to Section 4.6. Contractor shall provide a Notice to Owner at least twenty (20) Days prior to the date that Contractor expects the Work to be ready for each Acceptance Tests (the "Acceptance Testing Notice").
(i) Contractor shall conduct the Performance Tests as described in Exhibit A to verify compliance of each Unit with the Performance GuaranteesContractor’s cost. If the Performance Tests demonstrate that Services fail the Performance Guarantees have been metre-performed Services then the DCC may reject the Services (in whole or in part) forthwith and terminate (wholly or partially) this Agreement. The DCC may, at its absolute discretion, permit the Contractor shall tender such Unit to Owner, subject to the satisfaction repeat analysis and retesting of the other requirements for Substantial Completion, and Owner shall pay to Contractor Services against the bonuses, if any, set forth in Section 12.4(cAcceptance Tests.
3.6 Where Services (or relevant parts thereof) within thirty (30) Days of receiving a written invoice therefor from Contractor.
(ii) If the Performance Tests demonstrate that any of the Performance Guarantees have not been met, Contractor shall diligently take corrective action until subsequent Performance Tests demonstrate that all Performance Guarantees have been met or Contractor has tendered the Unit pursuant to clause (iii) below. During this period, Contractor may repeat the Performance Tests as many times as necessary to achieve the Performance Guarantees, subject to the limitations set forth in clause (iv) below. In any event, Contractor shall continue to pay Delay Liquidated Damages, if applicable, are permanently rejected in accordance with Section 12.2.
(iii) If Contractor (A) causes a Unit to achieve a performance level of at least (1) 96.25% of the Unit Power Output Guarantee on a per Unit basis, (2) 94.25% of the Maximum Unit Power Output Guarantee on a per Unit basis and (3) 104.25% of the Unit Heat Rate Guarantee on a per Unit basis (the "Performance Minimums") and (B) has satisfied the other requirements for Substantial Completion, Contractor may declare Substantial Completion. Commercial Tolerance Bands shall not be applied to the measurements or calculations regarding Performance Minimums.
(iv) If (x) Contractor causes a Unit to achieve the Performance Minimums pursuant to clause (iii) above and Substantial Completion has been achieved, and (y) the Date Certain has not yet occurred, Contractor shall have an opportunity to prepare and present to Owner a plan to achieve the Performance Guarantees, which plan shall be consistent with the operational requirements of the Facility and in accordance with the requirements of the Agreement (the "Remedial Plan"). The Remedial Plan shall be prepared in consultation with Owner, shall be presented within 30 days after the achievement of the Substantial Completion and shall detail the corrective measures which Contractor proposes to take to achieve the Performance Guarantees, the manner in which such corrective measures will be implemented, the proposed schedule for the implementation of such corrective measures, including the required outage duration ("Cure Outage"), and the proposed period of time (the "Plan Period") necessary to effect such corrective measures (which period of time shall not in any event extend beyond the date that is twelve (12) months after the Guaranteed Completion Date, provided, however, in the event that:
(A) the time necessary for Contractor to prepare for the implementation of the cure, despite the exercise of due diligence, does not permit the implementation of such cure during a planned outage prior to the expiration of such twelve (12) month period; or
(B) the next available planned outage that Owner agrees to permit Contractor to implement the cure occurs after the expiration of such twelve (12) month period; or
(C) the outage utilized for implementation of the cure extends beyond the expiration of such twelve (12) month period; then the expiration of such twelve (12) month period shall be extended until the completion of both the implementation of such cure and the required performance testing. Contractor agrees to schedule the Cure Outage during planned outages mutually agreed upon by the Parties and Contractor agrees to take reasonable actions to minimize the duration of any such Cure Outage. If the Unit is out of service on an unscheduled basis, Contractor, subject to Owner's consent, such consent not to be unreasonably withheld, may be given access to the Unit to implement such cure. Owner shall provide Contractor the opportunity to make the necessary corrections and to reperform such Performance Guarantee Tests, consistent with the operational requirements of the Facility and the planned outage schedule. In the event that the Cure Outage must be scheduled after the expiration of the original twelve (12) month period described above, Owner agrees to pay Contractor the unpaid balance of the Contractor Price upon the expiration of such period and receipt of an irrevovable unconditional letter of credit in such amount as Owner is entitled to retain under the terms of the Agreement. Contractor shall proceed with due diligence to implement the Remedial Plan and use reasonable efforts to achieve the Performance Guarantees. Contractor shall review any material revisions to the Remedial Plan with the Owner. If any revisions to the Remedial Plan require an extension of the outage beyond the expiration of the Cure Outage, Contractor shall pay Owner Delay Liquidated Damages at the rates and on the terms set forth in Section 12.2 for the period of such extension. If Contractor elects not to attempt a cure, Contractor shall so advise Owner and shall immediately pay the applicable Performance Liquidated Damages in accordance with Section 12 4(c) hereof. At the end of the Plan Period, Contractor shall pay the Performance Liquidated Damages calculated in accordance with Section 12.4(c) hereof.
(v) Notwithstanding the foregoing, if Contractor has not achieved the Performance Guarantees by the Date Certain, Contractor shall immediately pay to Owner the Performance Liquidated Damages calculated in accordance with Section 12.4(c) based upon the most recent Performance Test results, provided that nothing contained herein shall limit Contractor's obligation hereunder to achieve not less than the Performance Minimums.
(c) Liquidated damages and bonuses shall be payable to the extent that the results of the Performance Tests differ, by a magnitude greater than the Commercial Tolerance Band, from the Performance Guarantees set forth in Exhibit A. Solely for the purpose of computing liquidated damages and bonuses under this Section 12.4(c), the applicable Commercial Tolerance Band shall be applied to the Unit Power Output (as adjusted to the Base Conditions for the Unit Power Output Test) and the Unit Power Output (as adjusted to the Base Conditions for the Maximum Unit Power Output Test) and the applicable Commercial Tolerance Band shall be applied to the adjusted Unit Heat Rate (as adjusted to the Base Conditions for the Unit Heat Rate Test). The liquidated damages and bonuses applicable to the results of the Performance Tests regarding compliance of the Facility with the Performance Guarantees are as follows, and are subject to Sections 13.1 and 13.2:Clauses
Appears in 1 contract
Acceptance Tests. (a) 9.1 The Contractor shall not commence the at its own costs and expenses perform all Final Acceptance Tests (including without limitation testing and commissioning) in accordance with the acceptance procedures attached hereto as Annex D to meet the criteria set out in Annex D and all other acceptance tests required in relation to or pursuant to this Agreement. The Contractors hall further comply with all quality control and assurance systems of the Company.
9.2 The Company or any person authorised by the Company shall have the right, to inspect and test the different stages of the assembly or manufacture of the Works at any place where such assembly or manufacture or performance of Work is carried out or in preparation or performed in order to ensure that the Works are being performed in accordance with the Specifications, Documentation and the provisions of this Agreement. The Company and any person authorised by the Company for a Unit or the Facility until this purpose shall have free, uninterrupted and safe access at all reasonable times as and when required for such Unit or the Facility has achieved Mechanical Completioninspection and testing. Notwithstanding anything contained in the immediately preceding sentence to aforementioned, the contraryreview, Contractor shall be permitted to run tests on individual items of equipment for purposes of (i) verifying Subcontractor comments, requirements, (ii) satisfying emissions requirements; providedinstructions, however, that (A) such equipment can directions or approvals made or given by the Company during inspection and testing at the different stages shall not be run without damage to deemed acceptance or waiver by the Facility Company or any property and without injury to any other person and (B) relieve the Contractor shall not, by virtue of performing such tests, be relieved of any of its responsibilities and obligations under this Agreement, including without limitation, the obligations to demonstrate that the Facility can .
9.3 The Contractor shall be operated in compliance with all Laws. In preparing responsible for the performance cost of the Acceptance Tests, Contractor shall reasonably cooperate with Power Purchaser, Operator all such inspection and the natural gas supplier(s) for purposes of scheduling, safety, coordination of activities and similar matters. Contractor shall perform the Acceptance Tests at its sole expense, with all costs thereof payable testing carried out of the Contract Price, except for costs of Consumables provided by Owner pursuant to Section 4.1 and the operating personnel provided by Owner pursuant to Section 4.6. Contractor shall provide a Notice to Owner at least twenty (20) Days prior to the date that Contractor expects the Work to be ready for each Acceptance Tests (the "Acceptance Testing Notice").
(i) Contractor shall conduct the Performance Tests as described in Exhibit A to verify compliance of each Unit with the Performance Guarantees. If the Performance Tests demonstrate that the Performance Guarantees have been met, Contractor shall tender such Unit to Owner, subject to the satisfaction of the other requirements for Substantial Completion, and Owner shall pay to Contractor the bonuses, if any, set forth in Section 12.4(c) within thirty (30) Days of receiving a written invoice therefor from Contractor.
(ii) If the Performance Tests demonstrate that any of the Performance Guarantees have not been met, Contractor shall diligently take corrective action until subsequent Performance Tests demonstrate that all Performance Guarantees have been met or Contractor has tendered the Unit pursuant to clause (iii) below. During this period, Contractor may repeat the Performance Tests as many times as necessary to achieve the Performance Guarantees, subject to the limitations set forth in clause (iv) below. In any event, Contractor shall continue to pay Delay Liquidated Damages, if applicable, in accordance with Section 12.2.
(iii) If Contractor (A) causes a Unit to achieve a performance level of at least (1) 96.25% of the Unit Power Output Guarantee on a per Unit basis, (2) 94.25% of the Maximum Unit Power Output Guarantee on a per Unit basis and (3) 104.25% of the Unit Heat Rate Guarantee on a per Unit basis (the "Performance Minimums") and (B) has satisfied the other requirements for Substantial Completion, Contractor may declare Substantial Completion. Commercial Tolerance Bands shall not be applied to the measurements or calculations regarding Performance Minimums.
(iv) If (x) Contractor causes a Unit to achieve the Performance Minimums pursuant to clause (iii) above and Substantial Completion has been achieved, and (y) the Date Certain has not yet occurred, Contractor shall have an opportunity to prepare and present to Owner a plan to achieve the Performance Guarantees, which plan shall be consistent with the operational requirements of the Facility and in accordance with the requirements Specifications, Documentation and the provisions of this Agreement and with best industry practices and of any additional inspection and testing as a result of the failure of any Works to meet the Specifications, Documentation and the provisions of this Agreement.
9.4 The Contractor shall give the Company written notice of at least seven (7) working days and afford the Company or its representative the full opportunity to attend all tests (including but not limited to the Conditional Acceptance tests and the Final Acceptance tests) at the Site and fourteen (14) working days if the tests are to be carried out at the premises of the Contractor.
9.5 At any time prior to delivery to the Company and Final Acceptance of the Works in accordance with the terms of this Agreement, the Company shall have the right to reject any part of the Works found to be defective with respect to the Specification, Documentation or otherwise not in accordance with this Agreement (and any such defects in any part of the "Remedial Plan")Works shall be corrected or replaced by the Contractor at no additional expense or delay to the Company. The Remedial Plan Company and any person authorized by the Company shall be prepared in consultation with Owner, shall be presented within 30 days after the achievement entitled to re-inspect and re-test such part of the Substantial Completion Works.
9.6 The failure of the Company to inspect or condemn or reject any Works or otherwise to exercise any right entrusted to the Company shall not excuse the Contractor from the performance of this Agreement nor shall such action or inspection imply any Final Acceptance or any acceptance in any manner whatsoever by the Company of faulty or unsatisfactory Works or part thereof.
9.7 The Contractor shall notify the Company in writing when the Contractor has completed or anticipates completing delivery of the Works for Final Acceptance. The Parties shall (where applicable) carry out a joint inspection and/or performance of such Works or part thereof. Within seven (7) working days thereafter, the Company shall notify the Contractor in writing of any defects in the Works or part thereof or such other defects which the Company may discover. The Contractor shall immediately rectify defects notified to it and shall detail invite the corrective measures which Contractor proposes Company or persons authorised by the Company to take to achieve re-inspect or re-test the Performance Guarantees, the manner in which such corrective measures will be implemented, the proposed schedule for the implementation of such corrective measures, including the required outage duration ("Cure Outage"), Works so rectified and the proposed period Contractor shall re-perform the Works in respect of time (the "Plan Period") necessary rectified Works. The failure of the Company to effect such corrective measures (which period of time issue any notice shall not in any event extend beyond way relieve the Contractor of its obligation to complete such Works, to rectify any defects therein and to perform its warranty and guarantee obligations in respect thereof.
9.8 Final Acceptance of the Works will take place on the date that is twelve (12) months after the Guaranteed Completion Date, provided, however, in the event that:
(A) the time necessary for Contractor to prepare for the implementation of the curewritten final acceptance by the Company of the Works. The Final Acceptance will occur only upon, despite and shall be evidenced by, the Company’s signing and issue of the Final Acceptance Certificate.
9.9 The Final Acceptance of the Works thereof shall not prejudice or act as an estoppel against the exercise of due diligenceany right of the Company in this Agreement, does including but not permit the implementation of such cure during a planned outage prior limited to the expiration of such twelve (12) month period; or
(B) right to require the next available planned outage that Owner agrees to permit Contractor to implement the cure occurs after the expiration of such twelve (12) month period; or
(C) the outage utilized for implementation of the cure extends beyond the expiration of such twelve (12) month period; then the expiration of such twelve (12) month period shall be extended until the completion of both the implementation of such cure and the required performance testing. Contractor agrees to schedule the Cure Outage during planned outages mutually agreed upon by the Parties and Contractor agrees to take reasonable actions to minimize the duration of Works or any such Cure Outage. If the Unit is out of service on an unscheduled basis, Contractor, subject to Owner's consent, such consent not part thereof to be unreasonably withheldre-performed, may be given access repaired, replaced, or to the Unit to implement such cure. Owner shall provide Contractor the opportunity to make the necessary corrections and to reperform such Performance Guarantee Tests, consistent with the operational requirements of the Facility and the planned outage schedule. In the event that the Cure Outage must be scheduled after the expiration of the original twelve (12) month period described above, Owner agrees to pay Contractor the unpaid balance of the Contractor Price upon the expiration of such period and receipt of an irrevovable unconditional letter of credit in such amount as Owner is entitled to retain under the terms of the Agreement. Contractor shall proceed with due diligence to implement the Remedial Plan and use reasonable efforts to achieve the Performance Guarantees. Contractor shall review claim for breach or any material revisions to the Remedial Plan with the Owner. If any revisions to the Remedial Plan require an extension of the outage beyond the expiration of the Cure Outage, Contractor shall pay Owner Delay Liquidated Damages at the rates and on the terms set forth in Section 12.2 for the period of such extension. If Contractor elects not to attempt a cure, Contractor shall so advise Owner and shall immediately pay the applicable Performance Liquidated Damages in accordance with Section 12 4(c) hereof. At the end of the Plan Period, Contractor shall pay the Performance Liquidated Damages calculated in accordance with Section 12.4(c) hereofnon-compliance.
(v) Notwithstanding the foregoing, if Contractor has not achieved the Performance Guarantees by the Date Certain, Contractor shall immediately pay to Owner the Performance Liquidated Damages calculated in accordance with Section 12.4(c) based upon the most recent Performance Test results, provided that nothing contained herein shall limit Contractor's obligation hereunder to achieve not less than the Performance Minimums.
(c) Liquidated damages and bonuses shall be payable to the extent that the results of the Performance Tests differ, by a magnitude greater than the Commercial Tolerance Band, from the Performance Guarantees set forth in Exhibit A. Solely for the purpose of computing liquidated damages and bonuses under this Section 12.4(c), the applicable Commercial Tolerance Band shall be applied to the Unit Power Output (as adjusted to the Base Conditions for the Unit Power Output Test) and the Unit Power Output (as adjusted to the Base Conditions for the Maximum Unit Power Output Test) and the applicable Commercial Tolerance Band shall be applied to the adjusted Unit Heat Rate (as adjusted to the Base Conditions for the Unit Heat Rate Test). The liquidated damages and bonuses applicable to the results of the Performance Tests regarding compliance of the Facility with the Performance Guarantees are as follows, and are subject to Sections 13.1 and 13.2:
Appears in 1 contract
Acceptance Tests. (a) 20.1 The Contractor shall not commence give the Council no less than 30 days' notice of the date on which the Contractor considers that each New Facility will be completed.
20.2 An Acceptance Test shall be conducted by the Contractor in relation to each New Facility in accordance with the procedures for it developed, prepared and approved in accordance with the provisions of Part I of Schedule 6 and the provisions of the Construction and Installation Timetable.
20.3 If a New Facility fails to pass an Acceptance Test, it shall be repeated as soon as reasonably practicable.
20.4 Where the Contractor considers that a New Facility has passed the Acceptance Tests for a Unit or Test, the Facility until such Unit or Contractor shall issue an acceptance certificate prepared by the Contractor in the form set out in Part II of Schedule 6 and the Council shall, if satisfied that the New Facility has achieved Mechanical Completionso passed the Acceptance Test, countersign it, or if not so satisfied shall state why it is not prepared to do so. Notwithstanding anything contained Upon such counter-signature the acceptance certificate shall become an Acceptance Certificate and be deemed issued. If in the immediately preceding sentence event of a dispute the Expert subsequently determines that the New Facility had passed the Acceptance Test and that the Acceptance Certificate had therefor been correctly issued, it shall be deemed to have been countersigned on the contrarydate it was issued (and the Contractor shall accordingly incur no liability for the delay between the date of issue and the date upon which the Expert so determined).
20.5 Where a countersignature of an acceptance certificate is refused, the acceptance certificate shall, subject to Clause 20.4, be deemed not to have been issued and the Contractor shall be permitted entitled to run tests re-apply for the countersignature concerned once the work required in order for the Acceptance Test to be passed has been carried out.
20.6 The Contractor agrees with the Council that any countersignature of an Acceptance Certificate by or on individual items behalf of equipment the Council shall be for purposes the sole purpose of establishing purported compliance with the relevant Target Facility Completion Date, and that it does not in any way indicate or imply acceptance by the Council that a New Facility complies with the Design and Construction Specification, or is complete, nor (iexcept for the purpose mentioned above) verifying Subcontractor requirementsdoes it otherwise indicate or imply acceptance or approval by the Council of the New Facility, (ii) satisfying emissions requirements; provided, however, that (A) such equipment can be run without damage to nor does it relieve the Facility or any property and without injury to any other person and (B) Contractor shall not, by virtue of performing such tests, be relieved of any of its obligations under this Agreement, including without limitation, the obligations to demonstrate that the Facility can be operated in compliance with all Laws. In preparing for the performance of the Acceptance Tests, Contractor shall reasonably cooperate with Power Purchaser, Operator and the natural gas supplier(s) for purposes of scheduling, safety, coordination of activities and similar matters. Contractor shall perform the Acceptance Tests at its sole expense, with all costs thereof payable out of the Contract Price, except for costs of Consumables provided by Owner pursuant to Section 4.1 and the operating personnel provided by Owner pursuant to Section 4.6. Contractor shall provide a Notice to Owner at least twenty (20) Days prior to the date that Contractor expects the Work to be ready for each Acceptance Tests (the "Acceptance Testing Notice").Agreement.
(i) Contractor shall conduct the Performance Tests as described in Exhibit A to verify compliance of each Unit with the Performance Guarantees. If the Performance Tests demonstrate that the Performance Guarantees have been met, Contractor shall tender such Unit to Owner, subject to the satisfaction of the other requirements for Substantial Completion, and Owner shall pay to Contractor the bonuses, if any, set forth in Section 12.4(c) within thirty (30) Days of receiving a written invoice therefor from Contractor.
(ii) If the Performance Tests demonstrate that any of the Performance Guarantees have not been met, Contractor shall diligently take corrective action until subsequent Performance Tests demonstrate that all Performance Guarantees have been met or Contractor has tendered the Unit pursuant to clause (iii) below. During 20.7 Any dispute arising under this period, Contractor may repeat the Performance Tests as many times as necessary to achieve the Performance Guarantees, subject to the limitations set forth in clause (iv) below. In any event, Contractor shall continue to pay Delay Liquidated Damages, if applicable, in accordance with Section 12.2.
(iii) If Contractor (A) causes a Unit to achieve a performance level of at least (1) 96.25% of the Unit Power Output Guarantee on a per Unit basis, (2) 94.25% of the Maximum Unit Power Output Guarantee on a per Unit basis and (3) 104.25% of the Unit Heat Rate Guarantee on a per Unit basis (the "Performance Minimums") and (B) has satisfied the other requirements for Substantial Completion, Contractor may declare Substantial Completion. Commercial Tolerance Bands shall not be applied to the measurements or calculations regarding Performance Minimums.
(iv) If (x) Contractor causes a Unit to achieve the Performance Minimums pursuant to clause (iii) above and Substantial Completion has been achieved, and (y) the Date Certain has not yet occurred, Contractor shall have an opportunity to prepare and present to Owner a plan to achieve the Performance Guarantees, which plan shall be consistent with the operational requirements of the Facility and in accordance with the requirements of the Agreement (the "Remedial Plan"). The Remedial Plan shall be prepared in consultation with Owner, shall be presented within 30 days after the achievement of the Substantial Completion and shall detail the corrective measures which Contractor proposes to take to achieve the Performance Guarantees, the manner in which such corrective measures will be implemented, the proposed schedule for the implementation of such corrective measures, including the required outage duration ("Cure Outage"), and the proposed period of time (the "Plan Period") necessary to effect such corrective measures (which period of time shall not in any event extend beyond the date that is twelve (12) months after the Guaranteed Completion Date, provided, however, in the event that:
(A) the time necessary for Contractor to prepare for the implementation of the cure, despite the exercise of due diligence, does not permit the implementation of such cure during a planned outage prior to the expiration of such twelve (12) month period; or
(B) the next available planned outage that Owner agrees to permit Contractor to implement the cure occurs after the expiration of such twelve (12) month period; or
(C) the outage utilized for implementation of the cure extends beyond the expiration of such twelve (12) month period; then the expiration of such twelve (12) month period shall be extended until the completion of both the implementation of such cure and the required performance testing. Contractor agrees to schedule the Cure Outage during planned outages mutually agreed upon by the Parties and Contractor agrees to take reasonable actions to minimize the duration of any such Cure Outage. If the Unit is out of service on an unscheduled basis, Contractor, subject to Owner's consent, such consent not to be unreasonably withheld, Clause may be given access referred to the Unit to implement such cure. Owner shall provide Contractor the opportunity to make the necessary corrections and to reperform such Performance Guarantee Tests, consistent with the operational requirements of the Facility and the planned outage schedule. In the event that the Cure Outage must be scheduled after the expiration of the original twelve (12) month period described above, Owner agrees to pay Contractor the unpaid balance of the Contractor Price upon the expiration of such period and receipt of an irrevovable unconditional letter of credit in such amount as Owner is entitled to retain Expert under the terms of the Agreement. Contractor shall proceed with due diligence to implement the Remedial Plan and use reasonable efforts to achieve the Performance Guarantees. Contractor shall review any material revisions to the Remedial Plan with the Owner. If any revisions to the Remedial Plan require an extension of the outage beyond the expiration of the Cure Outage, Contractor shall pay Owner Delay Liquidated Damages at the rates and on the terms set forth in Section 12.2 for the period of such extension. If Contractor elects not to attempt a cure, Contractor shall so advise Owner and shall immediately pay the applicable Performance Liquidated Damages in accordance with Section 12 4(c) hereof. At the end of the Plan Period, Contractor shall pay the Performance Liquidated Damages calculated in accordance with Section 12.4(c) hereofClause 51.
(v) Notwithstanding the foregoing, if Contractor has not achieved the Performance Guarantees by the Date Certain, Contractor shall immediately pay to Owner the Performance Liquidated Damages calculated in accordance with Section 12.4(c) based upon the most recent Performance Test results, provided that nothing contained herein shall limit Contractor's obligation hereunder to achieve not less than the Performance Minimums.
(c) Liquidated damages and bonuses shall be payable to the extent that the results of the Performance Tests differ, by a magnitude greater than the Commercial Tolerance Band, from the Performance Guarantees set forth in Exhibit A. Solely for the purpose of computing liquidated damages and bonuses under this Section 12.4(c), the applicable Commercial Tolerance Band shall be applied to the Unit Power Output (as adjusted to the Base Conditions for the Unit Power Output Test) and the Unit Power Output (as adjusted to the Base Conditions for the Maximum Unit Power Output Test) and the applicable Commercial Tolerance Band shall be applied to the adjusted Unit Heat Rate (as adjusted to the Base Conditions for the Unit Heat Rate Test). The liquidated damages and bonuses applicable to the results of the Performance Tests regarding compliance of the Facility with the Performance Guarantees are as follows, and are subject to Sections 13.1 and 13.2:
Appears in 1 contract
Samples: Waste Disposal Project Agreement
Acceptance Tests. (a) Contractor shall not commence Iptor methodology requires number of tests during the Acceptance Tests for implementation in order to ensure a Unit or the Facility until such Unit or the Facility has achieved Mechanical Completionsolution of highest quality by eliminating and minimizing errors as soon as possible. Notwithstanding anything contained in the immediately preceding sentence to the contrary, Contractor shall be permitted to run tests on individual items of equipment for purposes of (i) verifying Subcontractor requirements, (ii) satisfying emissions requirements; provided, however, that (A) such equipment can be run without damage to the Facility or any property and without injury to any other person and (B) Contractor shall not, by virtue of performing such tests, be relieved of any of its obligations under this Agreement, including without limitation, the obligations to demonstrate It is expected that the Facility can be operated customer produces the test material found necessary in compliance with all Lawsorder for them to feel sufficiently comfortable when approving the new solution. In preparing for Thus, it is the performance responsibility of the Acceptance Tests, Contractor shall reasonably cooperate with Power Purchaser, Operator customer to produce the test plan and the natural gas supplier(s) for purposes of scheduling, safety, coordination of activities underlying material and similar matters. Contractor shall perform the Acceptance Tests at its sole expense, with all costs thereof payable out of the Contract Price, except for costs of Consumables provided by Owner pursuant to Section 4.1 and the operating personnel provided by Owner pursuant to Section 4.6. Contractor shall provide a Notice to Owner at least twenty (20) Days prior to the date that Contractor expects the Work to be ready for each Acceptance Tests (the "Acceptance Testing Notice").
(i) Contractor shall conduct the Performance Tests as described in Exhibit A to verify compliance of each Unit with the Performance Guarantees. If the Performance Tests demonstrate that the Performance Guarantees have been met, Contractor shall tender such Unit to Owner, subject to the satisfaction of the other requirements for Substantial Completion, and Owner shall pay to Contractor the bonuses, if any, set forth in Section 12.4(c) within thirty (30) Days of receiving a written invoice therefor from Contractor.
(ii) If the Performance Tests demonstrate that any of the Performance Guarantees have not been met, Contractor shall diligently take corrective action until subsequent Performance Tests demonstrate that all Performance Guarantees have been met or Contractor has tendered the Unit pursuant to clause (iii) below. During this period, Contractor may repeat the Performance Tests as many times as necessary to achieve the Performance Guarantees, subject to the limitations set forth in clause (iv) below. In any event, Contractor shall continue to pay Delay Liquidated Damages, if applicable, in accordance with Section 12.2.
(iii) If Contractor (A) causes a Unit to achieve a performance level of at least (1) 96.25% of the Unit Power Output Guarantee on a per Unit basis, (2) 94.25% of the Maximum Unit Power Output Guarantee on a per Unit basis and (3) 104.25% of the Unit Heat Rate Guarantee on a per Unit basis (the "Performance Minimums") and (B) has satisfied the other requirements for Substantial Completion, Contractor may declare Substantial Completion. Commercial Tolerance Bands shall not be applied to the measurements or calculations regarding Performance Minimums.
(iv) If (x) Contractor causes a Unit to achieve the Performance Minimums pursuant to clause (iii) above and Substantial Completion has been achieved, and (y) the Date Certain has not yet occurred, Contractor shall have an opportunity to prepare and present to Owner a plan to achieve the Performance Guarantees, which plan shall be consistent with the operational requirements of the Facility and collect material in accordance with the requirements directions from Iptor. Any form of official testing and controlling, i.e. function test, system test, stress test and the actual completion test is managed by the Customer in accordance with the plans and the agreed upon test scenario. Iptor’s ability to provide the Professional Services described in this Statement of Work is predicated upon the assumptions set forth herein. If any of such assumptions proves inaccurate, this Statement of Work is subject to further adjustment in accordance with the Change Request Procedures set forth below: (a) the scope of the Agreement Professional Services will not change from that detailed in this Statement of Work; (b) software development work not identified in this Statement of Work is excluded; (c) Customer’s Project Manager will have overall project direction responsibility and any decisions affecting scope or schedule will be timely made; and (d) Customer will complete its obligations set forth in this Statement of Work or corresponding Project Plan in a timely manner so as to avoid affecting or delaying Iptor’s performance. Additional Professional Services required by Customer and not reflected in this Statement of Work may be performed by Iptor at Customer’s request at the "Remedial Plan")Agreed Billing Rates. The Remedial Plan Changes in the scope of Professional Services under this Statement of Work shall only be made in writing by authorized representatives of both parties. Iptor shall have no obligation to commence any work in connection with any change until the cost and schedule impact of such Change Request is approved by the parties. Provided that Customer has not given notice of material defects with respect to the Deliverables delivered pursuant to this Statement of Work, this Statement of Work shall be prepared in consultation with Owner, shall be presented within 30 fulfilled and complete upon the earlier of written acknowledgement of completion by Customer or 10 days after the achievement delivery of the Substantial Completion and shall detail the corrective measures which Contractor proposes to take to achieve the Performance Guarantees, the manner in which such corrective measures will be implemented, the proposed schedule for the implementation of such corrective measures, including the required outage duration ("Cure Outage"), and the proposed period of time (the "Plan Period") necessary to effect such corrective measures (which period of time shall not in any event extend beyond the date that is twelve (12) months after the Guaranteed Completion Date, provided, however, in the event that:
(A) the time necessary for Contractor to prepare for the implementation of the cure, despite the exercise of due diligence, does not permit the implementation of such cure during a planned outage prior to the expiration of such twelve (12) month period; or
(B) the next available planned outage that Owner agrees to permit Contractor to implement the cure occurs after the expiration of such twelve (12) month period; or
(C) the outage utilized for implementation of the cure extends beyond the expiration of such twelve (12) month period; then the expiration of such twelve (12) month period shall be extended until the completion of both the implementation of such cure and the required performance testingeach Deliverable. Contractor agrees to schedule the Cure Outage during planned outages mutually agreed upon by the Parties and Contractor agrees to take reasonable actions to minimize the duration of any such Cure Outage. If the Unit is out of service on an unscheduled basis, Contractor, subject to Owner's consent, such consent not to be unreasonably withheld, may be given access to the Unit to implement such cure. Owner shall provide Contractor the opportunity to make the necessary corrections and to reperform such Performance Guarantee Tests, consistent with the operational requirements of the Facility and the planned outage schedule. In the event that the Cure Outage must be scheduled after the expiration of the original twelve (12) month period described above, Owner agrees to pay Contractor the unpaid balance of the Contractor Price upon the expiration of such period and receipt of an irrevovable unconditional letter of credit in such amount as Owner Iptor is entitled to retain under the terms charge Modifications Support fee from this Statement of Work and CR’s from all modifications (incl. integrations) developed within this Statement of Work and Change Orders. The fee value is 23%, unless otherwise stated in customer support agreement, of actual services costs for modifications analysis, design, programming, testing and deploying. The parties have executed this Statement of Work as of the Agreement. Contractor shall proceed with due diligence to implement the Remedial Plan and use reasonable efforts to achieve the Performance Guarantees. Contractor shall review any material revisions to the Remedial Plan with the Owner. If any revisions to the Remedial Plan require an extension of the outage beyond the expiration of the Cure Outage, Contractor shall pay Owner Delay Liquidated Damages at the rates and on the terms last date set forth in Section 12.2 for the period of such extensionbelow. If Contractor elects not to attempt a cureIptor Supply Chain Systems UK Limited. 000 Xxx Xxxxxx Xxxxxx, Contractor shall so advise Owner and shall immediately pay the applicable Performance Liquidated Damages in accordance with Section 12 4(c) hereof. At the end of the Plan PeriodXxxxxx, Contractor shall pay the Performance Liquidated Damages calculated in accordance with Section 12.4(c) hereof.
(v) Notwithstanding the foregoingXX0X 0XX, if Contractor has not achieved the Performance Guarantees by the Date Certain, Contractor shall immediately pay to Owner the Performance Liquidated Damages calculated in accordance with Section 12.4(c) based upon the most recent Performance Test results, provided that nothing contained herein shall limit Contractor's obligation hereunder to achieve not less than the Performance Minimums.
(c) Liquidated damages and bonuses shall be payable to the extent that the results of the Performance Tests differ, by a magnitude greater than the Commercial Tolerance Band, from the Performance Guarantees set forth in Exhibit A. Solely for the purpose of computing liquidated damages and bonuses under this Section 12.4(c), the applicable Commercial Tolerance Band shall be applied to the Unit Power Output (as adjusted to the Base Conditions for the Unit Power Output Test) and the Unit Power Output (as adjusted to the Base Conditions for the Maximum Unit Power Output Test) and the applicable Commercial Tolerance Band shall be applied to the adjusted Unit Heat Rate (as adjusted to the Base Conditions for the Unit Heat Rate Test). The liquidated damages and bonuses applicable to the results of the Performance Tests regarding compliance of the Facility with the Performance Guarantees are as follows, and are subject to Sections 13.1 and 13.2Xxxxxx Xxxxxxx Email Contact: Xxxx.xxxxxxxx@Xxxxx.xxx By*: Name: Title: Date: By*: Name: Title: Date:
Appears in 1 contract
Samples: Temporary Software License Agreement
Acceptance Tests. Supplier shall perform or require all appropriate factory acceptance testing (the "Factory Acceptance Tests") necessary to ensure that, prior to shipment or granting access for download (as applicable), all Software and other Deliverables are free from defects in materials and workmanship and meet the specifications required for use by Ameren and any applicable Ameren Affiliates. Upon receipt of the Software and other Deliverables, Ameren, with all necessary cooperation and assistance from Supplier, will perform software acceptance tests (the "Delivery Acceptance Tests") and such other inspections necessary to determine whether or not the Software or other Deliverables: (a) Contractor shall not commence perform in accordance with the applicable Documentation and the Acceptance Tests for Criteria; (b) can be used effectively in Ameren's operating business environment; (c) are capable of running without failure; and (d) have been delivered in a Unit or the Facility until such Unit or the Facility has achieved Mechanical Completioncondition consistent with this Contract. Notwithstanding anything contained The Parties will diligently endeavor to cooperate in the immediately preceding sentence to Delivery Acceptance Tests and such other inspections so that they are completed in a timely manner, and Ameren will provide written notification of the contrary, Contractor completion of same which shall be permitted to run tests on individual items of equipment serve as the acceptance for purposes of the commencement of the warranty period as set forth in Section 11.1. Ameren's acceptance of the Software and other Deliverables shall in no manner waive Ameren's rights under any representation or warranty set forth in this Contract. If Ameren determines that the Software or other Deliverable has not successfully met the Acceptance Criteria, Ameren will promptly notify Supplier in writing of such determination (ithe “Failure Notice”) verifying Subcontractor requirementsand will describe in reasonable detail its reasons for such determination. For Software, Supplier shall make such necessary corrections and modifications to the Software as will cause the Software to successfully pass the Delivery Acceptance Tests not later than ten (ii10) satisfying emissions requirementsbusiness days from the date of the most recent Failure Notice. Supplier will notify Ameren in writing that such corrections and modifications have been completed (the “Correction Notice”). Promptly after receipt of the Correction Notice, Ameren, with all necessary cooperation and assistance from Supplier, will re-test the Software using the Delivery Acceptance Tests and perform such other tests (the “Additional Acceptance Tests”) as Ameren deems reasonably necessary. If Ameren determines that the Software fails again to successfully meet the Acceptance Criteria or any criteria included as part of the Additional Acceptance Tests, Ameren will promptly provide Supplier with a Failure Notice, and will have (in addition to its other remedies in equity or at law) the right to reject the Software or to terminate the applicable SOW or this Contract. In the event of the termination of the SOW or rejection of the Software, Supplier shall make a full refund of all amounts paid prior to termination or rejection. Notwithstanding the foregoing, Ameren's acceptance of the Deliverables shall in no manner waive Ameren's rights under any representation or warranty set forth in this Contract or those of any affected Ameren Affiliate. Notwithstanding the foregoing, Ameren’s failure to notify Supplier that the Services or Deliverables meet the Acceptance Criteria within any time period as may be set forth in the Statement of Work shall in no event result in such Service’s or Deliverable’s “deemed acceptance,” or “deemed approval” and Ameren’s acceptance of such Service or Deliverable shall only occur upon Ameren’s written acknowledgment that such Service or Deliverable has met the Acceptance Criteria; provided, however, that (A) such equipment can be run without damage in the event Ameren fails to the Facility or any property and without injury to any other person and (B) Contractor shall not, by virtue of performing such tests, be relieved of any notify Supplier of its obligations under this Agreement, including without limitation, the obligations to demonstrate that the Facility can be operated in compliance with all Laws. In preparing for the performance approval or rejection of the Acceptance Tests, Contractor shall reasonably cooperate with Power Purchaser, Operator and the natural gas supplier(s) for purposes of scheduling, safety, coordination of activities and similar matters. Contractor shall perform the Acceptance Tests at its sole expense, with all costs thereof payable out of the Contract Price, except for costs of Consumables provided by Owner such Service or Deliverable pursuant to this Section 4.1 and within the operating personnel provided by Owner pursuant later to Section 4.6. Contractor shall provide a Notice to Owner at least twenty (20) Days prior to the date that Contractor expects the Work to be ready for each Acceptance Tests (the "Acceptance Testing Notice").
occur of: (i) Contractor shall conduct the Performance Tests as described in Exhibit A to verify compliance of each Unit with the Performance Guarantees. If the Performance Tests demonstrate that the Performance Guarantees have been met, Contractor shall tender such Unit to Owner, subject to the satisfaction of the other requirements for Substantial Completion, and Owner shall pay to Contractor the bonuses, if any, any applicable time period set forth in Section 12.4(c) within thirty (30) Days the Statement of receiving a written invoice therefor from Contractor.
Work, or (ii) If the Performance Tests demonstrate that any of the Performance Guarantees have not been met, Contractor shall diligently take corrective action until subsequent Performance Tests demonstrate that all Performance Guarantees have been met or Contractor has tendered the Unit pursuant to clause (iii) below. During this period, Contractor may repeat the Performance Tests as many times as necessary to achieve the Performance Guarantees, subject to the limitations set forth in clause (iv) below. In any event, Contractor shall continue to pay Delay Liquidated Damages, if applicable, in accordance with Section 12.2.
(iii) If Contractor (A) causes a Unit to achieve a performance level of at least (1) 96.25% of the Unit Power Output Guarantee on a per Unit basis, (2) 94.25% of the Maximum Unit Power Output Guarantee on a per Unit basis and three (3) 104.25% of the Unit Heat Rate Guarantee on a per Unit basis (the "Performance Minimums") and (B) business days after Supplier’s notice to Ameren that such time period is going to, or has satisfied the other requirements for Substantial Completionexpired, Contractor may declare Substantial Completion. Commercial Tolerance Bands shall not be applied to the measurements or calculations regarding Performance Minimums.
(iv) If (x) Contractor causes a Unit to achieve the Performance Minimums pursuant to clause (iii) above and Substantial Completion has been achieved, and (y) the Date Certain has not yet occurred, Contractor shall have an opportunity to prepare and present to Owner a plan to achieve the Performance Guarantees, which plan then Supplier shall be consistent with the operational requirements of the Facility and in accordance with the requirements of the Agreement (the "Remedial Plan"). The Remedial Plan shall be prepared in consultation with Owner, shall be presented within 30 days after the achievement of the Substantial Completion and shall detail the corrective measures which Contractor proposes entitled to take an equitable adjustment to achieve the Performance Guarantees, the manner in which such corrective measures will be implemented, the proposed schedule for the implementation of such corrective measures, including the required outage duration ("Cure Outage"), its fees and the proposed period of time (the "Plan Period") necessary to effect such corrective measures (which period of time shall not in any event extend beyond the date that is twelve (12) months after the Guaranteed Completion Date, provided, however, in the event that:
(A) the time necessary for Contractor to prepare for the implementation of the cure, despite the exercise of due diligence, does not permit the implementation of such cure during a planned outage prior to the expiration of such twelve (12) month period; or
(B) the next available planned outage that Owner agrees to permit Contractor to implement the cure occurs after the expiration of such twelve (12) month period; or
(C) the outage utilized for implementation of the cure extends beyond the expiration of such twelve (12) month period; then the expiration of such twelve (12) month period shall be extended until the completion of both the implementation of such cure and the required performance testing. Contractor agrees to schedule the Cure Outage during planned outages mutually agreed upon by the Parties and Contractor agrees to take reasonable actions to minimize the duration of any such Cure Outage. If the Unit is out of service on an unscheduled basis, Contractor, subject to Owner's consent, such consent not to be unreasonably withheld, may be given access to the Unit to implement such cure. Owner shall provide Contractor the opportunity to make the necessary corrections and to reperform such Performance Guarantee Tests, consistent with the operational requirements of the Facility and the planned outage schedule. In the event that the Cure Outage must be scheduled after the expiration of the original twelve (12) month period described above, Owner agrees to pay Contractor the unpaid balance of the Contractor Price upon the expiration of such period and receipt of an irrevovable unconditional letter of credit in such amount as Owner is entitled to retain under the terms of the Agreement. Contractor shall proceed with due diligence to implement the Remedial Plan and use reasonable efforts to achieve the Performance Guarantees. Contractor shall review any material revisions to the Remedial Plan with the Owner. If any revisions to the Remedial Plan require an extension of the outage beyond the expiration of the Cure Outage, Contractor shall pay Owner Delay Liquidated Damages at the rates and on the terms set forth in Section 12.2 for the period of such extension. If Contractor elects not to attempt a cure, Contractor shall so advise Owner and shall immediately pay the applicable Performance Liquidated Damages in accordance with Section 12 4(c) hereof. At the end of the Plan Period, Contractor shall pay the Performance Liquidated Damages calculated in accordance with Section 12.4(c) hereof.
(v) Notwithstanding the foregoing, if Contractor has not achieved the Performance Guarantees by the Date Certain, Contractor shall immediately pay to Owner the Performance Liquidated Damages calculated in accordance with Section 12.4(c) based upon the most recent Performance Test results, provided that nothing contained herein shall limit Contractor's obligation hereunder to achieve not less than the Performance Minimums.
(c) Liquidated damages and bonuses shall be payable Work Schedule to the extent that the results of the Performance Tests differ, by a magnitude greater than the Commercial Tolerance Band, from the Performance Guarantees set forth in Exhibit A. Solely for the purpose of computing liquidated damages and bonuses under this Section 12.4(c), the applicable Commercial Tolerance Band shall be applied to the Unit Power Output (as adjusted to the Base Conditions for the Unit Power Output Test) and the Unit Power Output (as adjusted to the Base Conditions for the Maximum Unit Power Output Test) and the applicable Commercial Tolerance Band shall be applied to the adjusted Unit Heat Rate (as adjusted to the Base Conditions for the Unit Heat Rate Test). The liquidated damages and bonuses applicable to the results of the Performance Tests regarding compliance of the Facility with the Performance Guarantees are as follows, and are subject to Sections 13.1 and 13.2:any resulting delay.
Appears in 1 contract
Acceptance Tests. (a) Contractor shall not commence The Goods may be required to satisfy the Acceptance Tests for a Unit or the Facility until such Unit or the Facility has achieved Mechanical Completion. Notwithstanding anything contained in the immediately preceding sentence to the contrary, Contractor shall be permitted to run tests on individual items of equipment for purposes of (i) verifying Subcontractor requirements, (ii) satisfying emissions requirements; provided, however, that (A) such equipment can be run without damage to the Facility or any property and without injury to any other person and (B) Contractor shall not, by virtue of performing such tests, be relieved of any of its obligations under this Agreement, including without limitation, the obligations to demonstrate that the Facility can Goods meet the Goods Specification before they are accepted by Aston. Aston will notify the Supplier in writing as to when the Acceptance Tests will take place. The Supplier may attend and assist with conducting the Acceptance Tests. The Supplier will be operated in compliance with all Laws. In preparing for afforded the performance opportunity to comment on the suitability of the Acceptance Tests, Contractor shall reasonably cooperate with Power Purchaser, Operator and . Aston will record the natural gas supplier(s) for purposes results of scheduling, safety, coordination the Acceptance Tests. Aston will notify the Supplier promptly on successful completion of activities and similar matters. Contractor shall perform the Acceptance Tests at its sole expense, with all costs thereof payable out of as to whether the Contract Price, except for costs of Consumables provided by Owner pursuant to Section 4.1 and Goods satisfy the operating personnel provided by Owner pursuant to Section 4.6. Contractor shall provide a Notice to Owner at least twenty (20) Days prior to the date that Contractor expects the Work to be ready for each Acceptance Tests (the "Acceptance Testing Notice").
(i) Contractor shall conduct the Performance Tests as described in Exhibit A to verify compliance of each Unit with the Performance GuaranteesTests. If the Performance Tests demonstrate Goods do not satisfy the Acceptance Tests, Aston will notify the Supplier of such failure and may (in its discretion and without prejudice to its other rights under this Agreement): grant a further period of time during which the Supplier will be required to adapt, modify and/or otherwise correct the relevant Goods to comply with the Goods Specification so that the Performance Guarantees have been met, Contractor shall tender such Unit to Owner, Goods can be re-submitted for further testing; or accept the Goods subject to a list of written exceptions which the satisfaction Supplier will rectify within the timescales agreed by the Parties; or accept the Goods subject to receiving a refund or reduction in Price; or reject any/all of the other requirements for Substantial Completion, Goods and Owner shall pay to Contractor the bonuses, if any, set forth in Section 12.4(c) within thirty (30) Days of receiving a terminate this Agreement with immediate effect by giving written invoice therefor from Contractor.
(ii) If the Performance Tests demonstrate that any of the Performance Guarantees have not been met, Contractor shall diligently take corrective action until subsequent Performance Tests demonstrate that all Performance Guarantees have been met or Contractor has tendered the Unit pursuant to clause (iii) below. During this period, Contractor may repeat the Performance Tests as many times as necessary to achieve the Performance Guarantees, subject notice to the limitations set forth in clause (iv) below. In any event, Contractor shall continue to pay Delay Liquidated Damages, if applicable, Supplier in accordance with Section 12.2.
(iii) If Contractor (A) causes paragraph 23 of this Part 1 without any liability to the Supplier on the basis of a Unit total failure of consideration including any liability to achieve a performance level of at least (1) 96.25% pay any outstanding payments of the Unit Power Output Guarantee on a per Unit basisPrice which, at the time of (2and but for) 94.25% of the Maximum Unit Power Output Guarantee on a per Unit basis such termination, remain outstanding and (3) 104.25% of the Unit Heat Rate Guarantee on a per Unit basis (the "Performance Minimums") and (B) has satisfied the other requirements for Substantial Completion, Contractor may declare Substantial Completion. Commercial Tolerance Bands shall not are due to be applied paid to the measurements or calculations regarding Performance Minimums.
(iv) If (x) Contractor causes a Unit to achieve the Performance Minimums pursuant to clause (iii) above and Substantial Completion has been achieved, and (y) the Date Certain has not yet occurred, Contractor shall have an opportunity to prepare and present to Owner a plan to achieve the Performance Guarantees, which plan shall be consistent with the operational requirements of the Facility and in accordance with the requirements of the Agreement (the "Remedial Plan"). The Remedial Plan shall be prepared in consultation with Owner, shall be presented within 30 days after the achievement of the Substantial Completion and shall detail the corrective measures which Contractor proposes to take to achieve the Performance Guarantees, the manner in which such corrective measures will be implemented, the proposed schedule for the implementation of such corrective measures, including the required outage duration ("Cure Outage"), and the proposed period of time (the "Plan Period") necessary to effect such corrective measures (which period of time shall not in any event extend beyond the date that is twelve (12) months after the Guaranteed Completion Date, provided, however, in the event that:
(A) the time necessary for Contractor to prepare for the implementation of the cure, despite the exercise of due diligence, does not permit the implementation of such cure during a planned outage prior to the expiration of such twelve (12) month period; or
(B) the next available planned outage that Owner agrees to permit Contractor to implement the cure occurs after the expiration of such twelve (12) month period; or
(C) the outage utilized for implementation of the cure extends beyond the expiration of such twelve (12) month period; then the expiration of such twelve (12) month period shall be extended until the completion of both the implementation of such cure and the required performance testing. Contractor agrees to schedule the Cure Outage during planned outages mutually agreed upon by the Parties and Contractor agrees to take reasonable actions to minimize the duration of any such Cure Outage. If the Unit is out of service on an unscheduled basis, Contractor, subject to Owner's consent, such consent not to be unreasonably withheld, may be given access to the Unit to implement such cure. Owner shall provide Contractor the opportunity to make the necessary corrections and to reperform such Performance Guarantee Tests, consistent with the operational requirements of the Facility and the planned outage scheduleSupplier. In the event that Aston terminates this Agreement pursuant to paragraph 5.6.4 of this Part 1, the Cure Outage must be scheduled after Supplier will repay Aston any amounts paid to the expiration Supplier under this Agreement within 14 days of the original twelve (12) month period described above, Owner agrees to pay Contractor date of such termination; or complete the unpaid balance supply of the Contractor Price upon Goods by entering into a contract with a third party and recover from the expiration Supplier any costs incurred by Aston in obtaining substitute Goods from a third party. The Supplier will ensure that any modifications made as a result of such period and receipt failing to pass the Acceptance Test will not adversely impact on any previously successful Acceptance Test or (as applicable) the approval procedure in respect of an irrevovable unconditional letter of credit in such amount as Owner is entitled to retain under the terms of the Agreementany other Goods. Contractor shall proceed with due diligence to implement the Remedial Plan and use reasonable efforts to achieve the Performance Guarantees. Contractor shall review any material revisions to the Remedial Plan with the Owner. If any revisions to the Remedial Plan require an extension of the outage beyond the expiration of the Cure Outage, Contractor shall pay Owner Delay Liquidated Damages at the rates and on the terms set forth in Section 12.2 for the period of such extension. If Contractor elects not to attempt a cure, Contractor shall so advise Owner and shall immediately pay the applicable Performance Liquidated Damages in accordance with Section 12 4(c) hereof. At the end of the Plan Period, Contractor shall pay the Performance Liquidated Damages calculated in accordance with Section 12.4(c) hereof.
(v) Notwithstanding the foregoing, if Contractor has not achieved the Performance Guarantees by the Date Certain, Contractor shall immediately pay to Owner the Performance Liquidated Damages calculated in accordance with Section 12.4(c) based upon the most recent Performance Test results, provided that nothing contained herein shall limit Contractor's obligation hereunder to achieve not less than the Performance Minimums.
(c) Liquidated damages and bonuses shall be payable to To the extent that the results of the Performance Tests differ, by a magnitude greater than the Commercial Tolerance Band, from the Performance Guarantees set forth in Exhibit A. Solely for the purpose of computing liquidated damages and bonuses under this Section 12.4(c)any such adverse impacts occur, the applicable Commercial Tolerance Band shall Supplier will be applied liable to Aston for Aston’s reasonable costs in conducting further tests. Aston will notify the Unit Power Output (as adjusted Supplier within 30 days of receiving the modified Goods pursuant to paragraph 5.6.1 of this Part 1 confirming whether the Base Conditions for modified Goods meet the Unit Power Output Test) and the Unit Power Output (as adjusted to the Base Conditions for the Maximum Unit Power Output Test) and the applicable Commercial Tolerance Band shall be applied to the adjusted Unit Heat Rate (as adjusted to the Base Conditions for the Unit Heat Rate Test). The liquidated damages and bonuses applicable to the results of the Performance Tests regarding compliance of the Facility with the Performance Guarantees are as follows, and are subject to Sections 13.1 and 13.2:Goods Specification.
Appears in 1 contract
Samples: Agreement for the Purchase of Goods
Acceptance Tests. (a) Contractor During the performance of the CONTRACT, the CONTRACT may elect between follow up the acceptance tests on site or work with reports of the tests performed, issued by the CONTRACTORS. Completed all supplies and services and once the implementation of each Network Element is performed, or installation on a new site is completed, the CONTRACTORS shall not commence notify the Acceptance Tests for a Unit or the Facility until such Unit or the Facility has achieved Mechanical Completion. Notwithstanding anything contained in the immediately preceding sentence fact to the contraryCONTACTING PARTY, Contractor on a weekly basis, in up to 3 (three) working days counted from the reception of such notification, the CONTRACTING PARTY shall authorize the beginning of the performance tests in each Network Element. The tests shall be permitted performed by the CONTRACTORS and will have as objective to run tests on ensure that any equipment, systems or individual items of equipment for purposes of (i) verifying Subcontractor requirements, (ii) satisfying emissions requirements; provided, however, that (A) such equipment can sub-systems will be run without damage to the Facility or any property and without injury to any other person and (B) Contractor shall not, by virtue of performing such tests, be relieved of any of its obligations under this Agreement, including without limitation, the obligations to demonstrate that the Facility can be operated in compliance with all Lawsspecifications provided in the ACCEPTANCE PROCEDURES (ATTACHMENT IV). In preparing for After the performance of the Acceptance Tests, Contractor shall reasonably cooperate with Power Purchaser, Operator tests and confirmation of compliance to the natural gas supplier(sequipment and systems to the BASIC ASSUMPTIONS (Attachment I) for purposes of scheduling, safety, coordination of activities and similar matters. Contractor shall perform the Acceptance Tests at its sole expense, with all costs thereof payable out of the Contract Price, except for costs of Consumables provided by Owner pursuant to Section 4.1 and the operating personnel provided by Owner pursuant to Section 4.6. Contractor shall provide a Notice to Owner at least twenty (20) Days prior installations to the date that Contractor expects specification provided in the Work to be ready for each Acceptance Tests ACCEPTANCE PROCEDURES (ATTACHMENT IV), the "Acceptance Testing Notice").
(i) Contractor CONTRACTING PARTY shall conduct activate the Performance Tests as described in Exhibit A to verify compliance of each Unit with the Performance Guarantees. If the Performance Tests demonstrate that the Performance Guarantees have been met, Contractor shall tender such Unit to Owner, subject to the satisfaction Network Element of the other requirements for Substantial Completionnew site. Once notified, the CONTRACTING PARTY, will check if the services are in order and Owner shall pay to Contractor the bonuses, if any, set forth in Section 12.4(c) within thirty (30) Days of receiving a written invoice therefor from Contractor.
(ii) If the Performance Tests demonstrate that any of the Performance Guarantees have not been met, Contractor shall diligently take corrective action until subsequent Performance Tests demonstrate that all Performance Guarantees have been met or Contractor has tendered the Unit pursuant to clause (iii) below. During this period, Contractor may repeat the Performance Tests as many times as necessary to achieve the Performance Guarantees, subject to the limitations set forth in clause (iv) below. In any event, Contractor shall continue to pay Delay Liquidated Damages, if applicable, in accordance with Section 12.2.
(iii) If Contractor (A) causes a Unit to achieve a performance level of at least (1) 96.25% of the Unit Power Output Guarantee on a per Unit basis, (2) 94.25% of the Maximum Unit Power Output Guarantee on a per Unit basis and (3) 104.25% of the Unit Heat Rate Guarantee on a per Unit basis (the "Performance Minimums") and (B) has satisfied the other requirements for Substantial Completion, Contractor may declare Substantial Completion. Commercial Tolerance Bands shall not be applied to the measurements or calculations regarding Performance Minimums.
(iv) If (x) Contractor causes a Unit to achieve the Performance Minimums pursuant to clause (iii) above and Substantial Completion has been achieved, and (y) the Date Certain has not yet occurred, Contractor shall have an opportunity to prepare and present to Owner a plan to achieve the Performance Guarantees, which plan shall be consistent with the operational requirements of the Facility and performed in accordance with the requirements stipulations of this CONTRACT. In case grave and impeditive pending items are not detected in accordance with the Agreement test procedures defined in the ACCEPTANCE PROCEDURE (Attachment IV), the "Remedial Plan")CONTRACTING PARTY will issue, in up to 10 (ten) working days, Initial Acceptance Term for each Network Element or new site. The Remedial Plan Otherwise, it shall be prepared in consultation with Ownerby the CONTRACTING PARTY, a List of Pending Items which shall be presented within 30 days after generated according to the achievement provision of the Substantial Completion and shall detail the corrective measures which Contractor proposes to take to achieve the Performance Guarantees, the manner in which such corrective measures will be implemented, the proposed schedule for the implementation of such corrective measures, including the required outage duration ACCEPTANCE PROCEDURE ("Cure Outage"Attachment IV), and the proposed CONTRACTORS shall be notified in writing, within the period of time 10 (ten) working days, so that they correct the "Plan Period") necessary imperfections listed, undertaking to effect such corrective measures (which immediately start the repairs and/or supplementations required. In case the CONTRACTING PARTY, unjustifiably, fails to issue the Initial Acceptance Term or the List of Pending Items, within the period indicated in the item above, the Initial Acceptance Term of each Network Element shall be considered as tacitly issued, for all purposes provided for in this contract. After the lapse of the period of time shall not in any event extend beyond 90 (ninety) days counted from the date that is twelve (12) months after issuance of the Guaranteed Completion Date, provided, however, Initial Acceptance Term of each Network Element and once cured all defects and/or irregularities pointed out in the event that:
(A) the time necessary for Contractor to prepare for the implementation List of the cure, despite the exercise of due diligence, does not permit the implementation of such cure during a planned outage prior to the expiration of such twelve (12) month period; or
(B) the next available planned outage that Owner agrees to permit Contractor to implement the cure occurs after the expiration of such twelve (12) month period; or
(C) the outage utilized for implementation of the cure extends beyond the expiration of such twelve (12) month period; then the expiration of such twelve (12) month period shall be extended until the completion of both the implementation of such cure and the required performance testing. Contractor agrees to schedule the Cure Outage during planned outages mutually agreed upon by the Parties and Contractor agrees to take reasonable actions to minimize the duration of any such Cure Outage. If the Unit is out of service on an unscheduled basis, Contractor, subject to Owner's consent, such consent not to be unreasonably withheld, may be given access to the Unit to implement such cure. Owner shall provide Contractor the opportunity to make the necessary corrections and to reperform such Performance Guarantee Tests, consistent with the operational requirements of the Facility and the planned outage schedule. In the event that the Cure Outage must be scheduled after the expiration of the original twelve (12) month period described Pending Items mentioned above, Owner agrees to pay Contractor as well as met all quality requirements in the unpaid balance of ACCEPTANCE PROCEDURE (Attachment IV), the Contractor Price upon CONTRACTING PARTY shall issue, for each network element, the expiration of such period and receipt of an irrevovable unconditional letter of credit in such amount as Owner is entitled to retain Initial Acceptance Term, under the terms of the Agreement. Contractor shall proceed with due diligence to implement the Remedial Plan and use reasonable efforts to achieve the Performance Guarantees. Contractor shall review any material revisions to the Remedial Plan with the Owner. If any revisions to the Remedial Plan require an extension of the outage beyond the expiration of the Cure Outage, Contractor shall pay Owner Delay Liquidated Damages at the rates and on the terms way set forth in Section 12.2 for the ACCEPTANCE PROCEDURE (Attachment IV), always observing the period of such extension. If Contractor elects not to attempt a cure, Contractor shall so advise Owner and shall immediately pay 10 (ten) calendar days after the applicable Performance Liquidated Damages in accordance with Section 12 4(c) hereof. At the end solution of the Plan Period, Contractor shall pay last pending item for the Performance Liquidated Damages calculated in accordance with Section 12.4(c) hereof.
(v) Notwithstanding the foregoing, if Contractor has not achieved the Performance Guarantees by the Date Certain, Contractor shall immediately pay to Owner the Performance Liquidated Damages calculated in accordance with Section 12.4(c) based upon the most recent Performance Test results, provided that nothing contained herein shall limit Contractor's obligation hereunder to achieve not less than the Performance Minimums.
(c) Liquidated damages and bonuses shall be payable to the extent that the results issuance of the Performance Tests differ, by a magnitude greater than the Commercial Tolerance Band, from the Performance Guarantees set forth in Exhibit A. Solely for the purpose of computing liquidated damages and bonuses under this Section 12.4(c), the applicable Commercial Tolerance Band shall be applied to the Unit Power Output (as adjusted to the Base Conditions for the Unit Power Output Test) and the Unit Power Output (as adjusted to the Base Conditions for the Maximum Unit Power Output Test) and the applicable Commercial Tolerance Band shall be applied to the adjusted Unit Heat Rate (as adjusted to the Base Conditions for the Unit Heat Rate Test). The liquidated damages and bonuses applicable to the results of the Performance Tests regarding compliance of the Facility with the Performance Guarantees are as follows, and are subject to Sections 13.1 and 13.2:respective Term.
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Samples: Supply and Provision of Services Agreement (Telemig Celular Participacoes Sa)
Acceptance Tests. (a) 9.1 The Contractor shall not commence the at its own costs and expenses perform all Final Acceptance Tests (including without limitation testing and commissioning) in accordance with the acceptance procedures attached hereto as Annex D to meet the criteria set out in Annex D and all other acceptance tests required in relation to or pursuant to this Agreement. The Contractor shall further comply with all quality control and assurance systems of the Company.
9.2 The Company or any person authorised by the Company shall have the right, to inspect and test the different stages of the assembly or manufacture of the Works and supply and performance of the Works at any place where such assembly or manufacture or supply or performance of Work is carried out or in preparation or performed in order to ensure that the Works are being performed in accordance with the Specifications, Documentation and the provisions of this Agreement. The Company and any person authorised by the Company for a Unit or the Facility until this purpose shall have free, uninterrupted and safe access at all reasonable times as and when required for such Unit or the Facility has achieved Mechanical Completioninspection and testing. Notwithstanding anything contained in the immediately preceding sentence to aforementioned, the contraryreview, Contractor shall be permitted to run tests on individual items of equipment for purposes of (i) verifying Subcontractor comments, requirements, (ii) satisfying emissions requirements; providedinstructions, however, that (A) such equipment can directions or approvals made or given by the Company during inspection and testing at the different stages shall not be run without damage to deemed acceptance or waiver by the Facility Company or any property and without injury to any other person and (B) relieve the Contractor shall not, by virtue of performing such tests, be relieved of any of its responsibilities and obligations under this Agreement, including without limitation, the obligations to demonstrate that the Facility can .
9.3 The Contractor shall be operated in compliance with all Laws. In preparing responsible for the performance cost of the Acceptance Tests, Contractor shall reasonably cooperate with Power Purchaser, Operator all such inspection and the natural gas supplier(s) for purposes of scheduling, safety, coordination of activities and similar matters. Contractor shall perform the Acceptance Tests at its sole expense, with all costs thereof payable testing carried out of the Contract Price, except for costs of Consumables provided by Owner pursuant to Section 4.1 and the operating personnel provided by Owner pursuant to Section 4.6. Contractor shall provide a Notice to Owner at least twenty (20) Days prior to the date that Contractor expects the Work to be ready for each Acceptance Tests (the "Acceptance Testing Notice").
(i) Contractor shall conduct the Performance Tests as described in Exhibit A to verify compliance of each Unit with the Performance Guarantees. If the Performance Tests demonstrate that the Performance Guarantees have been met, Contractor shall tender such Unit to Owner, subject to the satisfaction of the other requirements for Substantial Completion, and Owner shall pay to Contractor the bonuses, if any, set forth in Section 12.4(c) within thirty (30) Days of receiving a written invoice therefor from Contractor.
(ii) If the Performance Tests demonstrate that any of the Performance Guarantees have not been met, Contractor shall diligently take corrective action until subsequent Performance Tests demonstrate that all Performance Guarantees have been met or Contractor has tendered the Unit pursuant to clause (iii) below. During this period, Contractor may repeat the Performance Tests as many times as necessary to achieve the Performance Guarantees, subject to the limitations set forth in clause (iv) below. In any event, Contractor shall continue to pay Delay Liquidated Damages, if applicable, in accordance with Section 12.2.
(iii) If Contractor (A) causes a Unit to achieve a performance level of at least (1) 96.25% of the Unit Power Output Guarantee on a per Unit basis, (2) 94.25% of the Maximum Unit Power Output Guarantee on a per Unit basis and (3) 104.25% of the Unit Heat Rate Guarantee on a per Unit basis (the "Performance Minimums") and (B) has satisfied the other requirements for Substantial Completion, Contractor may declare Substantial Completion. Commercial Tolerance Bands shall not be applied to the measurements or calculations regarding Performance Minimums.
(iv) If (x) Contractor causes a Unit to achieve the Performance Minimums pursuant to clause (iii) above and Substantial Completion has been achieved, and (y) the Date Certain has not yet occurred, Contractor shall have an opportunity to prepare and present to Owner a plan to achieve the Performance Guarantees, which plan shall be consistent with the operational requirements of the Facility and in accordance with the requirements Specifications, Documentation and the provisions of this Agreement and with best industry practices and of any additional inspection and testing as a result of the failure of the entire or any part of the Works to meet the Specifications, Documentation and the provisions of this Agreement.
9.4 The Contractor shall give the Company written notice of at least seven (7) working days and afford the Company or its representative the full opportunity to attend all tests (including but not limited to the Conditional Acceptance tests and the Final Acceptance tests) at the Site and seven (7) working days if the tests are to be carried out at the premises of the Contractor.
9.5 At any time prior to delivery to the Company and Final Acceptance of the Works in accordance with the terms of this Agreement, the Company shall have the right to reject any part of the Works found to be defective with respect to the Specification, Documentation or otherwise not in accordance with this Agreement (and any such defects in any part of the "Remedial Plan")Works shall be corrected or replaced by the Contractor at no additional expense or delay to the Company. The Remedial Plan Company and any person authorised by the Company shall be prepared in consultation with Owner, shall be presented within 30 days after the achievement entitled to re-inspect and re-test such part of the Substantial Completion Works.
9.6 The failure of the Company to inspect or condemn or reject any Works or otherwise to exercise any right entrusted to the Company shall not excuse the Contractor from the performance of this Agreement nor shall such action or inspection imply any Conditional Acceptance, Final Acceptance or any acceptance in any manner whatsoever by the Company of faulty or unsatisfactory Works or part thereof.
9.7 The Contractor shall notify the Company in writing when the Contractor has completed or anticipates completing delivery of the Works for Final Acceptance. The Parties shall (where applicable) carry out a joint inspection and/or performance of such Works or part thereof. Within seven (7) working days thereafter, the Company shall notify the Contractor in writing of any defects in the Works or part thereof or such other defects which the Company may discover. The Contractor shall immediately rectify defects notified to it and shall detail invite the corrective measures which Contractor proposes Company or persons authorised by the Company to take to achieve re-inspect or re- test the Performance Guarantees, the manner in which such corrective measures will be implemented, the proposed schedule for the implementation of such corrective measures, including the required outage duration ("Cure Outage"), Works so rectified and the proposed period Contractor shall re-perform the Works. The failure of time (the "Plan Period") necessary Company to effect such corrective measures (which period of time issue any notice shall not in any event extend beyond way relieve the Contractor of its obligation to supply and complete such Work, to rectify any defects therein and to perform its warranty and guarantee obligations in respect thereof.
9.8 Final Acceptance of the Works will take place on the date that is twelve (12) months after the Guaranteed Completion Date, provided, however, in the event that:
(A) the time necessary for Contractor to prepare for the implementation of the curewritten final acceptance by the Company of the Works. The Final Acceptance will occur only upon, despite and shall be evidenced by, the Company’s signing and issue of the Final Acceptance Certificate.
9.9 The Conditional Acceptance and/or Final Acceptance of the Works thereof shall not prejudice or act as an estoppel against the exercise of due diligenceany right of the Company in this Agreement, including but not limited to the right to require the Works or any part thereof to be re-performed, repaired, replaced, or to claim for breach or any non-compliance.
9.10 The Company may effect Conditional Acceptance of the Works notwithstanding any minor non-conformity to the Specifications provided the Company in its sole discretion determines that such nonconformity does not permit impair the implementation safe or efficient operation of the Works or is minor or unsubstantial. The Company’s written acknowledgement of its Conditional Acceptance will be evidenced by the Company’s signing and issue of the Conditional Acceptance Certificate. The Contractor shall remain obliged to and shall use its best endeavours to correct or remedy such nonconformity as soon as practicable. The value of such cure during a planned outage prior to non-conformity shall be determined by the expiration of such twelve (12) month period; or
(B) Company in its sole discretion and an amount equal thereto shall be withheld from the next available planned outage that Owner agrees to permit Contractor to implement instalment payable by the cure occurs after the expiration of such twelve (12) month period; or
(C) the outage utilized for implementation of the cure extends beyond the expiration of such twelve (12) month period; then the expiration of such twelve (12) month period Company. Such amount shall be extended until the completion of both the implementation of such cure and the required performance testing. Contractor agrees to schedule the Cure Outage during planned outages mutually agreed upon paid by the Parties and Contractor agrees Company when the relevant nonconformity shall have been demonstrated to take reasonable actions to minimize the duration of any such Cure Outage. If the Unit is out of service on an unscheduled basis, Contractor, subject to Owner's consent, such consent not to be unreasonably withheld, may be given access to the Unit to implement such cure. Owner shall provide Contractor the opportunity to make the necessary corrections and to reperform such Performance Guarantee Tests, consistent with the operational requirements of the Facility and the planned outage schedule. In the event that the Cure Outage must be scheduled after the expiration of the original twelve (12) month period described above, Owner agrees to pay Contractor the unpaid balance of the Contractor Price upon the expiration of such period and receipt of an irrevovable unconditional letter of credit in such amount as Owner is entitled to retain under the terms of the Agreement. Contractor shall proceed with due diligence to implement the Remedial Plan and use reasonable efforts to achieve the Performance Guarantees. Contractor shall review any material revisions to the Remedial Plan with the Owner. If any revisions to the Remedial Plan require an extension of the outage beyond the expiration of the Cure Outage, Contractor shall pay Owner Delay Liquidated Damages at the rates and on the terms set forth in Section 12.2 for the period of such extension. If Contractor elects not to attempt a cure, Contractor shall so advise Owner and shall immediately pay the applicable Performance Liquidated Damages in accordance with Section 12 4(c) hereof. At the end of the Plan Period, Contractor shall pay the Performance Liquidated Damages calculated in accordance with Section 12.4(c) hereofhave been corrected or remedied accordingly.
(v) Notwithstanding the foregoing, if Contractor has not achieved the Performance Guarantees by the Date Certain, Contractor shall immediately pay to Owner the Performance Liquidated Damages calculated in accordance with Section 12.4(c) based upon the most recent Performance Test results, provided that nothing contained herein shall limit Contractor's obligation hereunder to achieve not less than the Performance Minimums.
(c) Liquidated damages and bonuses shall be payable to the extent that the results of the Performance Tests differ, by a magnitude greater than the Commercial Tolerance Band, from the Performance Guarantees set forth in Exhibit A. Solely for the purpose of computing liquidated damages and bonuses under this Section 12.4(c), the applicable Commercial Tolerance Band shall be applied to the Unit Power Output (as adjusted to the Base Conditions for the Unit Power Output Test) and the Unit Power Output (as adjusted to the Base Conditions for the Maximum Unit Power Output Test) and the applicable Commercial Tolerance Band shall be applied to the adjusted Unit Heat Rate (as adjusted to the Base Conditions for the Unit Heat Rate Test). The liquidated damages and bonuses applicable to the results of the Performance Tests regarding compliance of the Facility with the Performance Guarantees are as follows, and are subject to Sections 13.1 and 13.2:
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