FAILURE TO ACHIEVE PERFORMANCE GUARANTEES Sample Clauses

FAILURE TO ACHIEVE PERFORMANCE GUARANTEES. 6.2.1 If any Production Line does not achieve the Performance Guarantees by the Guaranteed Final Acceptance Date other than as a result of a default by Buyer hereunder, the parties agree that the Buyer will suffer loss and damage. Since the actual damages that would be suffered would be impossible to ascertain precisely, the parties agree that Seller shall pay Buyer, at Buyer's option, exercised in its sole discretion, liquidated damages, not as a penalty, in an amount determined by multiplying (i) the percentage by which the actual capacity of such Production Line is less than the Performance Guarantee with respect thereto set forth in Section 1(a) of Schedule 1 in the case of each Semi-Automated Production Line and Section 2(a) of Schedule 1 in the case of each Fully-Automated Production Line by (ii) the Purchase Price for such Production Line. 6.2.2 If Final Acceptance has been achieved for any Production Line except for the failure of such Production Line to meet the Performance Guarantees by the Guaranteed Final Acceptance Date, then upon payment of all liquidated damages due under Section 6.2.1, the Performance Guarantees shall be deemed to have been amended to reflect the actual levels of performance of such Production Line demonstrated by the Performance Tests and Seller shall have no further liability with respect to such Production Line.
Sample 1
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FAILURE TO ACHIEVE PERFORMANCE GUARANTEES. (a) If, during the Guarantee Test, the Facility achieves all of the Minimum Acceptance Criteria but fails to achieve one or more of the Performance Guarantees, then, subject to Contractor having achieved all other conditions of Substantial Completion (i) Company shall issue a Handover Certificate, (ii) Contractor shall pay Performance Liquidated Damages in respect of the performance shortfall, and (iii) on the terms set forth in Section 6.10(b), Contractor may have an opportunity to complete one (1) or more Guarantee Test Repetitions in order to satisfy the Performance Guarantees and to have the Performance Liquidated Damages adjusted based on the outcome thereof. (b) Subject to the following terms, Contractor shall be entitled to perform one or more Guarantee Test Repetitions during the one hundred and eighty (180) Days immediately following the Handover Date (the “Performance Remedial Period”): (i) Within the first sixty (60) Days after the Handover Date or failed Performance Test Repetition (as applicable), Contractor shall deliver to Company a Remedial Plan outlining the measures that Contractor believes will improve the performance of the Facility (such measures “Performance Remedial Work”). (ii) The Remedial Plan submitted pursuant to Section 6.10(b)(i) must have been approved by Company (using commercially reasonable discretion) in accordance with Section 6.11. (iii) The start date for the Performance Remedial Work to be performed at the Site must occur prior to the expiry of the Performance Remedial Period. (c) If Contractor satisfies the requirements of Section 6.10(b) (as determined by Company in its reasonable discretion), Contractor shall be entitled to (i) at Contractor’s sole cost and expense, and pursuant to the Remedial Plan, carry out the necessary remedial Work to remedy the failure to achieve the Performance Guarantees, (ii) subject to compliance with the notice requirements of Section 6.7(a), perform a Guarantee Test Repetition and (iii) upon completion of the foregoing remedial Work and Guarantee Test Repetition, reissue the Contractor’s Performance Statement in compliance with the requirements of Section 6.8(a).
Sample 1

Related to FAILURE TO ACHIEVE PERFORMANCE GUARANTEES

  • Performance Guarantees Contractor agrees to provide the County the performance guarantees specified in Attachment A and to pay any penalties incurred in accordance with the terms of Attachment A.

  • Continuing Performance (a) The obligations under this Agreement continue until satisfied in full and do not merge with any action performed or document executed by any Party for the purposes of performance of this Agreement. (b) Any representation in this Agreement survives the execution of any document for the purposes of, and continues after, performance of this Agreement. (c) Any indemnity given by any Party under this Agreement: (i) constitutes a liability of that Party separate and independent from any other liability of that Party under this Agreement or any other agreement; and (ii) survives and continues after performance of this Agreement.

  • Performance Guarantee 9.4.1 The Concessionaire shall, for the performance of its obligations hereunder during the Concession Period, provide to the Authority no later than [90] days prior to expiry of the Performance Security, an irrevocable and unconditional guarantee from a Bank for a sum equivalent to Rs. ***** crore (Rupees ***** crore)7 in the form set forth in Schedule-FF (the “Performance Guarantee”). Until such time the Performance Guarantee is provided by the Concessionaire pursuant hereto and the same comes into effect, notwithstanding anything contained in clause 9.3 the Performance Security shall remain in force and effect, and upon such provision of the Performance Guarantee pursuant hereto, the Authority shall release the Performance Security to the Concessionaire. 9.4.2 Notwithstanding anything to the contrary contained in this Agreement, in the event Performance Guarantee is not provided by the Concessionaire within a period of [90] days prior to expiry of the Performance Security, the Authority may invoke and encash the Performance Security and appropriate the proceeds thereof as Damages, and thereupon all rights, privileges, claims and entitlements of the Concessionaire under or arising out of this Agreement shall be deemed to have been waived by, and to have ceased with the concurrence of the Concessionaire, and this Agreement shall be deemed to have been terminated by mutual agreement of the Parties.

  • Prompt Performance All actions required to be taken (including payments) by any party under this Agreement shall be performed within the time prescribed for performance in this Agreement, or if no period is prescribed, such actions shall be performed promptly.

  • Ongoing Performance Measures The Department intends to use performance-reporting tools in order to measure the performance of Contractor(s). These tools will include the Contractor Performance Survey (Exhibit H), to be completed by Customers on a quarterly basis. Such measures will allow the Department to better track Vendor performance through the term of the Contract(s) and ensure that Contractor(s) consistently provide quality services to the State and its Customers. The Department reserves the right to modify the Contractor Performance Survey document and introduce additional performance-reporting tools as they are developed, including online tools (e.g. tools within MFMP or on the Department's website).

  • Excused Performance 6.1 Notwithstanding the occurrence of a Force Majeure Event, in which case Clause 17 will govern, BT will not be liable for any failure or delay to perform any of its obligations under this Agreement (including any of its obligations to meet any Service Levels) to the extent that BT’s failure or delay in performing arises as a result of: 6.1.1 any failure or delay by the Customer to perform any of the Customer’s obligations under this Agreement; 6.1.2 any act or omission other than on the part of a BT Affiliate or a subcontractor or supplier appointed by it unless that BT Affiliate, subcontractor or supplier has invoked their force majeure rights under their contract with BT; or 6.1.3 Applicable Law, a court order, an application for interlocutory relief or injunction restricting or preventing BT from supplying a Service.

  • Excuse for Nonperformance or Delayed Performance Except with respect to defaults of subcontractors, Contractor/Vendor shall not be in default by reason of any failure in performance of this contract in accordance with its terms (including any failure by Contractor/Vendor to make progress in the prosecution of the work hereunder which endangers such performance) if Contractor/Vendor has notified the Commission or designee within 15 days after the cause of the delay and the failure arises out of causes such as: acts of God; acts of the public enemy; acts of the State and any other governmental entity in its sovereign or contractual capacity; fires; floods; epidemics; quarantine restrictions; strikes or other labor disputes; freight embargoes; or unusually severe weather. If the failure to perform is caused by the failure of a subcontractor to perform or to make progress, and if such failure arises out of causes similar to those set forth above, Contractor/Vendor shall not be deemed to be in default, unless the services to be furnished by the subcontractor were reasonably obtainable from other sources in sufficient time to permit Contractor to meet the contract requirements. Upon request of Contractor, the Commission or designee shall ascertain the facts and extent of such failure, and, if such officer determines that any failure to perform was occasioned by any one or more of the excusable causes, and that, but for the excusable cause, Contractor’s progress and performance would have met the terms of the contract, the delivery schedule shall be revised accordingly, subject to the rights of the State under the clause entitled (in fixed-price contracts, “Termination for Convenience,” in cost-reimbursement contracts, “Termination”). (As used in this Paragraph of this clause, the term “subcontractor” means subcontractor at any tier).

  • Substantial Performance This Contract shall be deemed to be substantially performed only when fully performed according to its terms and conditions and any written amendments or supplements.

  • Continuing Contract Performance Pending final resolution of a Claim, except as otherwise agreed in writing or as provided in Section 9.7 and Article 13, the Design-Builder shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Design-Build Documents.

  • Monitoring of Contract Performance The Contractor shall comply with the monitoring arrangements set out in the Monitoring Requirements Schedule including, but not limited to, providing such data and information as the Contractor may be required to produce under the Contract.

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