Common use of Delivery Failure Clause in Contracts

Delivery Failure. (A) Where the quantity of Products Delivered is less than that required by the relevant Firm Order, the Parties shall enter into good faith discussions regarding replacements of such under-Delivered Products (where requested by the Purchaser), and, unless otherwise agreed by the Purchaser, in the event of any such Product shortfall greater than ten per cent. (10%) of a Firm Order or the Products are not delivered on the Delivery date (“Delivery Failure”), the Supplier shall use Commercially Reasonable Efforts to Deliver any such Product shortfall as soon as reasonably practicable after the original Delivery date in accordance with such Delivery schedule as may be mutually agreed between the Parties and in any event within ten (10) Business Days of the date specified for Delivery of the relevant Product. (B) In the event of a Delivery Failure following the expiration of the period referred to in clause 9.3(A), for any Firm Order (or portion thereof) which cannot be Delivered, the Purchaser shall be entitled to either: (a) cancel such Firm Order (or the relevant portions thereof) without penalty to Purchaser; or (b) purchase replacement Product from a Third Party, and the Supplier shall be obliged to reimburse the Purchaser the difference between the recorded price paid for such replacement Product and the Supply Price that Purchaser would have paid to Supplier for the equivalent quantities of Product; (C) In the event of a Delivery Failure following the expiration of the period referred to in clause 9.3(A), additionally or alternatively to the remedies in 9.3(B) above, the Purchaser shall be entitled to recover from Supplier any costs, expenses, fees, loss and liability (including legally binding commitments to pay out of pocket damages to end customers or third party suppliers) actually incurred by the Purchaser as a direct result of such Delivery Failure (subject always to the variance referred to at clause 9.3(B) above and any variation agreed by the Parties); and (D) Any delay in Delivery to the extent due to any reason listed below shall not be regarded as Delivery Failure: (a) Force Majeure; (b) Purchaser’s change of a Firm Order or any gross negligence on the part of the Purchaser; or (c) as specifically provided in respect of Purchaser Materials as set out in Exhibit 8 (Purchased Materials).

Delivery Failure. (A) Where the quantity of Products Delivered is less than that required by the relevant Firm Order, the Parties shall enter into good faith discussions regarding replacements of such under-Delivered Products (where requested by the Purchaser), and, unless otherwise agreed by the Purchaser, in the event of any such Product shortfall greater than ten per cent. (10%) of a Firm Order or the Products are not delivered on the Delivery date (“Delivery Failure”), the Supplier shall use Commercially Reasonable Efforts to Deliver any such Product shortfall as soon as reasonably practicable after the original Delivery date in accordance with such Delivery schedule as may be mutually agreed between the Parties and in any event within ten (10) Business Days of the date specified for Delivery of the relevant Product. (B) In the event of a Delivery Failure following the expiration of the period referred to in clause 9.3(A), for any Firm Order (or portion thereof) which cannot be Delivered, the Purchaser shall be entitled to either: (a) cancel such Firm Order (or the relevant portions thereof) without penalty to Purchaser; or (b) purchase replacement Product from a Third Party, and the Supplier shall be obliged to reimburse the Purchaser the difference between the recorded price paid for such replacement Product and the Supply Price that Purchaser would have paid to Supplier for the equivalent quantities of Product; (C) In the event of a Delivery Failure following the expiration of the period referred to in clause 9.3(A), additionally or alternatively to the remedies in 9.3(B) above, the Purchaser shall be entitled to recover from Supplier any costs, expenses, fees, loss and liability (including legally binding commitments to pay out of pocket damages to end customers or third party suppliers) actually incurred by the Purchaser as a direct result of such Delivery Failure (subject always to the variance referred to at clause 9.3(B) above and any variation agreed by the Parties); and (D) Any delay in Delivery to the extent due to any reason listed below shall not be regarded as Delivery Failure: (a) Force Majeure; (b) Purchaser’s change of a Firm Order/Push Firm Order or any gross negligence on the part of the Purchaser; or (c) as specifically provided in respect of Purchaser Materials as set out in Exhibit 8 (Purchased Materials).

Delivery Failure. (Aa) Where In the event that the Vessel delivering any Shipment of Biomass fails to tender valid NOR at the Discharging Port during the Delivery Window applicable to that Shipment (other than as a consequence of Force Majeure), then it shall constitute a Delivery Failure by the Seller and the quantity of Products Delivered is less than that required by the relevant Firm Order, the Parties shall enter into good faith discussions regarding replacements of such under-Delivered Products (where requested by the Purchaser), and, unless otherwise agreed by the Purchaser, in the event of any such Product shortfall greater than ten per cent. (10%) of a Firm Order or the Products are not delivered on Biomass to which the Delivery date (“Failure relates shall constitute a Delivery Failure”), the Supplier shall use Commercially Reasonable Efforts to Deliver any such Product shortfall as soon as reasonably practicable after the original Delivery date in accordance with such Delivery schedule as may be mutually agreed between the Parties and in any event within ten (10) Business Days of the date specified for Delivery of the relevant ProductShortfall. (Bb) In the event of a Delivery Failure following the expiration of the period referred to in clause 9.3(A), for any Firm Order (or portion thereof) which cannot be Delivered, the Purchaser shall be entitled may (in its absolute discretion) elect to eitherpurchase a volume of biomass up to the Delivery Shortfall from a third party, in which case: (ai) cancel the Seller will reimburse to the Purchaser the Difference Price (as calculated in accordance with paragraph (c) below), in accordance with Clause 14.3 (Other Invoices); and (ii) (notwithstanding any such Firm Order purchase from a third party), the Delivery Shortfall shall be deemed to have been delivered by the Seller and paid for by the Purchaser for purposes of Clause 8.5 (Take or Pay) and Clause 12.3(d) (Variations to Delivery Schedules). (c) The Purchaser shall calculate the relevant portions thereofDifference Price in relation to any Delivery Shortfall which shall be equal to: (i) without penalty to Purchaser; or the Market Price for the biomass purchased by the Purchaser under paragraph (b) purchase replacement Product from above; less (ii) the portion of the Shipment Value of the Delivery Shortfall attributable to an amount of Biomass equal to the biomass purchased by the Purchaser under paragraph (b) above which would have been paid by the Purchaser had the Purchaser taken delivery of that Delivery Shortfall (assuming the Shipment Value for that Delivery Shortfall with a Third Partyfigure of V (as defined in Clause 14.1 (Shipment Value)) equal to seventeen (17) for the first Shipment and thereafter the weighted average Net Calorific Value of Shipments delivered over the prior 365-day period); plus (iii) any reasonable and documented additional direct losses, costs or expenses incurred by the Purchaser in relation to the Seller failing to deliver the Delivery Shortfall (including additional transportation charges, legal costs, deadfreight, storage costs, handling costs, Taxes or duties, and the Supplier shall be obliged to reimburse the Purchaser the difference between the recorded price paid for such replacement Product and the Supply Price that Purchaser would have paid to Supplier for the equivalent quantities of Product; (C) In the event of a Delivery Failure following the expiration of the period referred to in clause 9.3(Ainterest), additionally and actual damages and expenses suffered or alternatively to the remedies in 9.3(B) above, the Purchaser shall be entitled to recover from Supplier any costs, expenses, fees, loss and liability (including legally binding commitments to pay out of pocket damages to end customers or third party suppliers) actually incurred by the Purchaser as a direct result of such entering into any agreements relating to that Delivery Failure Shortfall. If the Difference Price as calculated under this paragraph (subject always c) would be a negative number, the Difference Price shall be deemed to be zero for that Delivery Shortfall. The Purchaser will promptly notify the Difference Price to the variance referred to at clause 9.3(B) above and any variation agreed by the Parties); andSeller with reasonable supporting documentation. (Dd) Any delay in Delivery to For the extent due to any reason listed below avoidance of doubt, the Purchaser shall not be regarded entitled to reject any Delivery Shortfall and the Seller shall be entitled to deliver (and the Purchaser shall be required to accept and pay for) that Delivery Shortfall outside of the relevant Delivery Window provided that (i) such delivery is at a time acceptable to the Purchaser which does not adversely interfere with biomass shipments from other suppliers but is otherwise as soon as reasonably practicable after the Shipment is available for delivery; and (ii) the Annual Operational Delivery Failure: Schedule and Annual Base Quantity shall be subject to adjustment in accordance with Clause 12.3(e) (aVariations to Delivery Schedules) Force Majeure; in the event that the Purchaser has purchased replacement biomass under paragraph (b) Purchaser’s change of a Firm Order or any gross negligence on the part of the Purchaser; or (c) as specifically provided in respect of Purchaser Materials as set out in Exhibit 8 (Purchased Materials)above.