Common use of GPR Performance Metric and Liquidated Damages Clause in Contracts

GPR Performance Metric and Liquidated Damages. For each MPR Assessment Period, a Measured Performance Ratio shall be calculated as provided in Section 2.6(a) (Calculation of Measured Performance Ratio) of this Agreement. In the event the MPR is less than 95% of the GPR Performance Metric as adjusted by the degradation factor set forth below, Seller shall pay, and Company shall accept, as liquidated damages for Seller's failure to achieve the GPR Performance Metric for such MPR Assessment Period, an amount calculated in accordance with the following formula: Tier 1 GPR Performance Metric x DF x 0.95 > Measured Performance Ratio ≥ GPR Performance Metric x DF x 0.90 For each one-tenth of one percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the upper limit of the bandwidth specified in this subparagraph, an amount equal to one-tenth of one percent (0.001) of the MPR Assessment Period Lump Sum Payment. The upper end of the aforementioned bandwidth is equal to the product of the GPR Performance Metric, the applicable degradation factor (DF), and 95%. The lower limit of the aforementioned bandwidth consists of and includes the product of the GPR Performance Metric, the applicable degradation factor (DF), and 90%; plus Tier 2 GPR Performance Metric x DF x 0.90 > Measured Performance Ratio ≥ GPR Performance Metric x DF x 0.80 For each one-tenth of one percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the upper limit of the bandwidth specified in this subparagraph, an amount equal to two-tenths of one percent (0.002) of the MPR Assessment Period Lump Sum Payment. The upper end of the aforementioned bandwidth is equal to the product of the GPR Performance Metric, the applicable degradation factor (DF), and 90%. The lower limit of the aforementioned bandwidth consists of and includes the product of the GPR Performance Metric, the applicable degradation factor (DF), and 80%; plus Measured Performance Ratio < GPR Performance Metric x DF x 0.80 For each one-tenth of one percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the product of the GPR Performance Metric, the applicable degradation factor (DF), and 80%, an amount equal to four-tenths of one percent (0.004) of the MPR Assessment Period Lump Sum Payment. For purposes of the foregoing calculations under this Section 2.6(c) (GPR Performance Metric and Liquidated Damages), the degradation factor (DF) is calculated for each Contract Year (e.g., second Contract Year, third Contract Year, fourth Contract Year, etc.) as follows: . For purposes of the foregoing formula, the "Applicable Contract Year" is the Contract Year within which the calendar month in question falls. If all of the months of an MPR Assessment Period fall within the same Contract Year, the Contract Year is the "Applicable Contract Year." For example, if all of the months of MPR Assessment Period fall within the third Contract Year, the value assigned to the "Applicable Contract Year" would be "3" and the formula for calculating the DF for such LD Period would be: . However, because the MPR Assessment Period is a rolling 12-month period, the MPR Assessment Period will often straddle two consecutive Contract Years. In such cases, all of the months falling within the same Contract Year will be assigned the value for such Contract Year and the value assigned to the "Applicable Contract Year" for purposes of the foregoing formula shall be the average of the assigned monthly values for such 12-month MPR Assessment Period. For example, for an MPR Assessment Period which has four months in the third Contract Year and eight months in the fourth Contract Year, the value assigned to the "Applicable Contract Year" for such MPR Assessment Period would be 3.67, as calculated as follows: and the formula for calculating the DF for such MPR Assessment Period would be . For purposes of determining liquidated damages under this Section 2.6(c) (GPR Performance Metric and Liquidated Damages), the amount by which the Measured Performance Ratio for the MPR Assessment Period in question falls below the applicable threshold shall be rounded to the nearest one-tenth of one percent (0.001). Each Party agrees and acknowledges that (i) the damages that Company would incur if the Seller fails to achieve the GPR Performance Metric for a MPR Assessment Period would be difficult or impossible to calculate with certainty and (ii) the aforesaid liquidated damages are an appropriate approximation of such damages.

GPR Performance Metric and Liquidated Damages. For each MPR Assessment Period, a Measured Performance Ratio shall be calculated as provided in Section 2.6(a) (Calculation of Measured Performance Ratio) of this Agreement. In the event the MPR is less than 95% of the GPR Performance Metric as adjusted by the degradation factor set forth below, Seller Subscriber Organization shall pay, and Company shall accept, as liquidated damages for SellerSubscriber Organization's failure to achieve the GPR Performance Metric for such MPR Assessment Period, an amount calculated in accordance with the following formula: Tier 1 GPR Performance Metric x DF x 0.95 > Measured Performance Ratio ≥ GPR Performance Metric x DF x 0.90 For each one-tenth of one percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the upper limit of the bandwidth specified in this subparagraph, an amount equal to one-tenth of one percent (0.001) of the MPR Assessment Period Lump Sum Payment. The upper end of the aforementioned bandwidth is equal to the product of the GPR Performance Metric, the applicable degradation factor (DF), and 95%. The lower limit of the aforementioned bandwidth consists of and includes the product of the GPR Performance Metric, the applicable degradation factor (DF), and 90%; plus Tier 2 GPR Performance Metric x DF x 0.90 > Measured Performance Ratio ≥ GPR Performance Metric x DF x 0.80 For each one-tenth of one percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the upper limit of the bandwidth specified in this subparagraph, an amount equal to two-tenths of one percent (0.002) of the MPR Assessment Period Lump Sum Payment. The upper end of the aforementioned bandwidth is equal to the product of the GPR Performance Metric, the applicable degradation factor (DF), and 90%. The lower limit of the aforementioned bandwidth consists of and includes the product of the GPR Performance Metric, the applicable degradation factor (DF), and 80%; plus Measured Performance Ratio < GPR Performance Metric x DF x 0.80 For each one-tenth of one percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the product of the GPR Performance Metric, the applicable degradation factor (DF), and 80%, an amount equal to four-tenths of one percent (0.004) of the MPR Assessment Period Lump Sum Payment. For purposes of the foregoing calculations under this Section 2.6(c) (GPR Performance Metric and Liquidated Damages), the degradation factor (DF) is calculated for each Contract Year (e.g., second Contract Year, third Contract Year, fourth Contract Year, etc.) as follows: . For purposes of the foregoing formula, the "Applicable Contract Year" is the Contract Year within which the calendar month in question falls. If all of the months of an MPR Assessment Period fall within the same Contract Year, the Contract Year is the "Applicable Contract Year." For example, if all of the months of MPR Assessment Period fall within the third Contract Year, the value assigned to the "Applicable Contract Year" would be "3" and the formula for calculating the DF for such LD Period would be: . However, because the MPR Assessment Period is a rolling 12-month period, the MPR Assessment Period will often straddle two consecutive Contract Years. In such cases, all of the months falling within the same Contract Year will be assigned the value for such Contract Year and the value assigned to the "Applicable Contract Year" for purposes of the foregoing formula shall be the average of the assigned monthly values for such 12-month MPR Assessment Period. For example, for an MPR Assessment Period which has four months in the third Contract Year and eight months in the fourth Contract Year, the value assigned to the "Applicable Contract Year" for such MPR Assessment Period would be 3.67, as calculated as follows: and the formula for calculating the DF for such MPR Assessment Period would be . For purposes of determining liquidated damages under this Section 2.6(c) (GPR Performance Metric and Liquidated Damages), the amount by which the Measured Performance Ratio for the MPR Assessment Period in question falls below the applicable threshold shall be rounded to the nearest one-tenth of one percent (0.001). Each Party agrees and acknowledges that (i) the damages that Company would incur if the Seller Subscriber Organization fails to achieve the GPR Performance Metric for a MPR Assessment Period would be difficult or impossible to calculate with certainty and (ii) the aforesaid liquidated damages are an appropriate approximation of such damages.

GPR Performance Metric and Liquidated Damages. For each MPR Assessment Period, a Measured Performance Ratio shall be calculated as provided in Section 2.6(a) (Calculation of Measured Performance Ratio) of this Agreement. In the event the MPR is less than 95% of the GPR Performance Metric as adjusted by the degradation factor set forth below, Seller shall pay, in accordance with Section 2.12 (Payment of Liquidated Damages for Failure to Achieve Performance Metrics; Limitation on Liquidated Damages), and Company shall accept, as liquidated damages for Seller's failure to achieve the GPR Performance Metric for such MPR Assessment Period, an amount calculated in accordance with the following formula: Tier 1 GPR Performance Metric x DF x 0.95 > Measured Performance Ratio ≥ GPR Performance Metric x DF x 0.90 Amount of Liquidated Damages Per MPR Assessment Period For each one-tenth of one percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the upper limit of the bandwidth specified in this subparagraph, an amount equal to one-tenth of one percent (0.001) of the MPR Assessment Period Lump Sum Payment. The upper end of the aforementioned bandwidth is equal to the product of the GPR Performance Metric, the applicable degradation factor (DF), and 95%. The lower limit of the aforementioned bandwidth consists of and includes the product of the GPR Performance Metric, the applicable degradation factor (DF), and 90%; plus Tier 2 GPR Performance Metric x DF x 0.90 > Measured Performance Ratio ≥ GPR Performance Metric x DF x 0.80 For each one-tenth of one percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the upper limit of the bandwidth specified in this subparagraph, an amount equal to two-tenths of one percent (0.002) of the MPR Assessment Period Lump Sum Payment. The upper end of the aforementioned bandwidth is equal to the product of the GPR Performance Metric, the applicable degradation factor (DF), and 90%. The lower limit of the aforementioned bandwidth consists of and includes the product of the GPR Performance Metric, the applicable degradation factor (DF), and 80%; plus Measured Performance Ratio < GPR Performance Metric x DF x 0.80 For each one-tenth of one Measured percent (0.001) by which Performance the Measured Performance Ratio < GPR Ratio for such MPR Performance Assessment Period falls Metric x DF x below the product of the GPR Performance Metric, the applicable degradation factor (DF), and 80%, an amount equal to four-tenths of one percent (0.004) of the MPR Assessment Period Lump Sum Payment. For purposes of the foregoing calculations under this Section 2.6(c) (GPR Performance Metric and Liquidated Damages), the degradation factor (DF) is calculated for each Contract Year (e.g., second Contract Year, third Contract Year, fourth Contract Year, etc.) as follows: = 1 — 0.005 ∗ (Applicable Contract Year — 1). For purposes of the foregoing formula, the "Applicable Contract Year" is the Contract Year within which the calendar month in question falls. If all of the months of an MPR Assessment Period fall within the same Contract Year, the Contract Year is the "Applicable Contract Year." For example, if all of the months of MPR Assessment Period fall within the third Contract Year, the value assigned to the "Applicable Contract Year" would be "3" and the formula for calculating the DF for such LD Period would be: = 1 — 0.005 ∗ (3 — 1). However, because the MPR Assessment Period is a rolling 12-month period, the MPR Assessment Period will often straddle two consecutive Contract Years. In such cases, all of the months falling within the same Contract Year will be assigned the value for such Contract Year and the value assigned to the "Applicable Contract Year" for purposes of the foregoing formula shall be the average of the assigned monthly values for such 12-month MPR Assessment Period. For example, for an MPR Assessment Period which has four months in the third Contract Year and eight months in the fourth Contract Year, the value assigned to the "Applicable Contract Year" for such MPR Assessment Period would be 3.67, as calculated as follows: and the formula for calculating the DF for such MPR Assessment Period would be = 1 — 0.005 ∗ (3.67 — 1). For purposes of determining liquidated damages under this Section 2.6(c) (GPR Performance Metric and Liquidated Damages), the amount by which the Measured Performance Ratio for the MPR Assessment Period in question falls below the applicable threshold shall be rounded to the nearest one-tenth of one percent (0.001). Each Party agrees and acknowledges that (i) the damages that Company would incur if the Seller fails to achieve the GPR Performance Metric for a MPR Assessment Period would be difficult or impossible to calculate with certainty and (ii) the aforesaid liquidated damages are an appropriate approximation of such damages.

GPR Performance Metric and Liquidated Damages. For each MPR Assessment Period, a Measured Performance Ratio shall be calculated as provided in Section 2.6(a) (Calculation of Measured Performance Ratio) of this Agreement. In the event the MPR is less than 95% of the GPR Performance Metric as adjusted by the degradation factor set forth below, Seller shall pay, in accordance with Section 2.12 (Payment of Liquidated Damages for Failure to Achieve Performance Metrics; Limitation on Liquidated Damages), and Company shall accept, as liquidated damages for Seller's failure to achieve the GPR Performance Metric for such MPR Assessment Period, an amount calculated in accordance with the following formula: Tier 1 GPR Performance Metric x DF x 0.95 > Measured Performance Ratio ≥ GPR Performance Metric x DF x 0.90 For each one-tenth of one percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the upper limit of the bandwidth specified in this subparagraph, an amount equal to one-tenth of one percent (0.001) of the MPR Assessment Period Lump Sum Payment. The upper end of the aforementioned bandwidth is equal to the product of the GPR Performance Metric, the applicable degradation factor (DF), and 95%. The lower limit of the aforementioned bandwidth consists of and includes the product of the GPR Performance Metric, the applicable degradation factor (DF), and 90%; plus Tier 2 GPR Performance Metric x DF x 0.90 > Measured Performance Ratio ≥ GPR Performance Metric x DF x 0.80 For each one-tenth of one percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the upper limit of the bandwidth specified in this subparagraph, an amount equal to two-tenths of one percent (0.002) of the MPR Assessment Period Lump Sum Payment. The upper end of the aforementioned bandwidth is equal to the product of the GPR Performance Metric, the applicable degradation factor (DF), and 90%. The lower limit of the aforementioned bandwidth consists of and includes the product of the GPR Performance Metric, the applicable degradation factor (DF), and 80%; plus Measured Performance Ratio < GPR Performance Metric x DF x 0.80 For each one-tenth of one percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the product of the GPR Performance Metric, the applicable degradation factor (DF), and 80%, an amount equal to four-tenths of one percent (0.004) of the MPR Assessment Period Lump Sum Payment. For purposes of the foregoing calculations under this Section 2.6(c) (GPR Performance Metric and Liquidated Damages), the degradation factor (DF) is calculated for each Contract Year (e.g., second Contract Year, third Contract Year, fourth Contract Year, etc.) as follows: . For purposes of the foregoing formula, the "Applicable Contract Year" is the Contract Year within which the calendar month in question falls. If all of the months of an MPR Assessment Period fall within the same Contract Year, the Contract Year is the "Applicable Contract Year." For example, if all of the months of MPR Assessment Period fall within the third Contract Year, the value assigned to the "Applicable Contract Year" would be "3" and the formula for calculating the DF for such LD Period would be: . However, because the MPR Assessment Period is a rolling 12-month period, the MPR Assessment Period will often straddle two consecutive Contract Years. In such cases, all of the months falling within the same Contract Year will be assigned the value for such Contract Year and the value assigned to the "Applicable Contract Year" for purposes of the foregoing formula shall be the average of the assigned monthly values for such 12-month MPR Assessment Period. For example, for an MPR Assessment Period which has four months in the third Contract Year and eight months in the fourth Contract Year, the value assigned to the "Applicable Contract Year" for such MPR Assessment Period would be 3.67, as calculated as follows: and the formula for calculating the DF for such MPR Assessment Period would be . For purposes of determining liquidated damages under this Section 2.6(c) (GPR Performance Metric and Liquidated Damages), the amount by which the Measured Performance Ratio for the MPR Assessment Period in question falls below the applicable threshold shall be rounded to the nearest one-tenth of one percent (0.001). Each Party agrees and acknowledges that (i) the damages that Company would incur if the Seller fails to achieve the GPR Performance Metric for a MPR Assessment Period would be difficult or impossible to calculate with certainty and (ii) the aforesaid liquidated damages are an appropriate approximation of such damages.

GPR Performance Metric and Liquidated Damages. For each MPR Assessment Period, a Measured Performance Ratio shall be calculated as provided in Section 2.6(a) (Calculation of Measured Performance Ratio) of this Agreement. In the event the MPR is less than 95% of the GPR Performance Metric as adjusted by the degradation factor set forth below, Seller Subscriber Organization shall pay, and Company shall accept, as liquidated damages for SellerSubscriber Organization's failure to achieve the GPR Performance Metric for such MPR Assessment Period, an amount calculated in accordance with the following formula: Tier Measured Performance Ratio Amount of Liquidated Damages Per MPR Assessment Period Tier GPR For each one-tenth of one 1 GPR Performance Metric x DF x 0.95 > Measured Performance Ratio ≥ GPR Performance Metric x DF 0.90 x 0.90 For each one-tenth of one x percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the upper limit of the bandwidth specified in this subparagraph, an amount equal to one-tenth of one percent (0.001) of the MPR Assessment Period Lump Sum Payment. The upper end of the aforementioned bandwidth is equal to the product of the GPR Performance Metric, the applicable degradation factor (DF), and 95%. The lower limit of the aforementioned bandwidth consists of and includes the product of the GPR Performance Metric, the applicable degradation factor (DF), and 90%; plus Tier 2 GPR Performance Metric x DF x 0.90 > Measured Performance Ratio ≥ GPR Performance Metric x DF x 0.80 For each one-tenth of one percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the upper limit of the bandwidth specified in this subparagraph, an amount equal to two-tenths of one percent (0.002) of the MPR Assessment Period Lump Sum Payment. The upper end of the aforementioned bandwidth is equal to the product of the GPR Performance Metric, the applicable degradation factor (DF), and 90%. The lower limit of the aforementioned bandwidth consists of and includes the product of the GPR Performance Metric, the applicable degradation factor (DF), and 80%; plus Measured Performance Ratio < GPR Performance Metric x DF x 0.80 For each one-tenth of one percent (0.001) by which the Measured Performance Ratio for such MPR Assessment Period falls below the product of the GPR Performance Metric, the applicable degradation factor (DF), and 80%, an amount equal to four-tenths of one percent (0.004) of the MPR Assessment Period Lump Sum Payment. For purposes of the foregoing calculations under this Section 2.6(c) (GPR Performance Metric and Liquidated Damages), the degradation factor (DF) is calculated for each Contract Year (e.g., second Contract Year, third Contract Year, fourth Contract Year, etc.) as follows: = 1 − 0.005 ∗ (Applicable Contract Year − 1). For purposes of the foregoing formula, the "Applicable Contract Year" is the Contract Year within which the calendar month in question falls. If all of the months of an MPR Assessment Period fall within the same Contract Year, the Contract Year is the "Applicable Contract Year." For example, if all of the months of MPR Assessment Period fall within the third Contract Year, the value assigned to the "Applicable Contract Year" would be "3" and the formula for calculating the DF for such LD Period would be: = 1 − 0.005 ∗ (3 − 1). However, because the MPR Assessment Period is a rolling 12-month period, the MPR Assessment Period will often straddle two consecutive Contract Years. In such cases, all of the months falling within the same Contract Year will be assigned the value for such Contract Year and the value assigned to the "Applicable Contract Year" for purposes of the foregoing formula shall be the average of the assigned monthly values for such 12-month MPR Assessment Period. For example, for an MPR Assessment Period which has four months in the third Contract Year and eight months in the fourth Contract Year, the value assigned to the "Applicable Contract Year" for such MPR Assessment Period would be 3.67, as calculated as follows: and the formula for calculating the DF for such MPR Assessment Period would be = 1 − 0.005 ∗ (3.67 − 1). For purposes of determining liquidated damages under this Section 2.6(c) (GPR Performance Metric and Liquidated Damages), the amount by which the Measured Performance Ratio for the MPR Assessment Period in question falls below the applicable threshold shall be rounded to the nearest one-tenth of one percent (0.001). Each Party agrees and acknowledges that (i) the damages that Company would incur if the Seller Subscriber Organization fails to achieve the GPR Performance Metric for a MPR Assessment Period would be difficult or impossible to calculate with certainty and (ii) the aforesaid liquidated damages are an appropriate approximation of such damages.