Liability for Non Performance. (a) Seller’s Failure to Deliver. If Seller fails to deliver all or part of the Product specified for each Delivery Deadlinea Season and Source Zone by the relevant Delivery Deadline and such failure is not excused bya result of Buyer’s failure to perform or excused by an event of Force Majeure, then Seller shall pay Buyer, within five (5) Business Days of invoice receipt, an amount equal to the positive difference, if any, obtained by subtracting the applicable Contract Price from the ACP of the Compliance Zone ACP applicable to such Season multiplied by the days in Planning Yearthe applicable Season and multiplying such positive amount, if any, by the portion of the Contract Quantity which Seller failed to deliver. In addition, the Seller shall pay to Buyer all penalties and/or charges assessed to Buyer (either directly or through contractual obligation) resulting directly from Seller’s failure to deliver all or part of the Product or due to all or part of the Product being invalid or ineligible; provided, however, that Seller shall not be liable for any Capacity Deficiency Charges or similar penalties assessed to Buyer resulting from Xxxxx’s election to become deficient in the Planning Resource Auction. The invoice from Buyer to Seller for any amount owed by Seller to Buyer pursuant to this provision shall include a written statement explaining in reasonable detail the calculation of such amount.
Liability for Non Performance. Neither of the parties hereto shall have any liability to each other for failure to perform its obligations hereunder unless such failure arises out of, directly or indirectly, the misconduct or gross negligence on the part of the nonperforming party. Neither party shall be required to perform any Service (or any part of any Service) to the extent that performance of such Service (or such part of such Service) would violate any law, rule or regulation.
Liability for Non Performance. (a) Unless and to the extent prevented from doing so by an event of Force Majeure (as defined herein) or by a Forced Outage, if Seller fails to deliver Capacity to Buyer with respect to any transaction hereunder in accordance with the terms and conditions of this Confirmation Agreement, Seller shall pay Buyer, on the date payment would otherwise be due to Seller, an amount equal to (i) the product of (x) the deficiency in the Contract Quantity delivered and
(y) the positive difference, if any, obtained by subtracting the Capacity Price from the Replacement Price, plus (ii) additional costs, if any, incurred by Buyer as a consequence of Seller's failure to perform, including, but not limited to penalties incurred, less (iii) any costs Buyer avoids as a consequence of Seller's failure to perform. "Replacement Price" means the price at which Buyer, acting in a commercially reasonable manner, purchases substitute or replacement Capacity for the Capacity not delivered by Seller, or absent any such substitute or replacement purchase, the market price for such quantity of substitute or replacement capacity during the contemplated Period of Delivery as determined by Buyer in a commercially reasonable manner; provided, however, in no event shall the Replacement Price include any penalties, ratcheted demand or similar charges or any stranded costs.
Liability for Non Performance. (a) Unless and to the extent prevented from doing so by an event of Force Majeure (as defined herein), by the action or inaction of Buyer, or by an Outage, if Seller fails to deliver Capacity to Buyer in accordance with the terms and conditions of this Confirmation Agreement with respect to any applicable Transaction, Seller shall pay Buyer, on the date payment would otherwise be due to Seller, an amount equal to (i) the product of (x) the deficiency in the Contract Quantity delivered and (y) the positive difference, if any, obtained by subtracting the Capacity Price from the Replacement Price, plus (ii) additional costs, if any, incurred by Buyer as a consequence of Seller's failure to perform, including, but not limited to penalties incurred, less (iii) any costs Buyer avoids as a consequence of Seller's failure to perform. “Replacement Price” means the price at which Buyer, acting in a commercially reasonable manner, purchases substitute or replacement Capacity for the Capacity not delivered by Seller, or absent any such substitute or replacement purchase, the market price for such quantity of substitute or replacement Capacity during the period of xxxx Xxxxxx failed to deliver Capacity as determined by Buyer in a commercially reasonable manner; provided, however, in no event shall the Replacement Price include any penalties, ratcheted demand or similar charges or any stranded costs. For the avoidance of doubt, the costs identified in (ii) above do not include any damages (including any consequential damages) expressly disclaimed and waived pursuant to Section 7.
Liability for Non Performance. (a) Seller’s Failure to Deliver. If Seller fails to deliver all or part of the Product specified by the relevant Delivery Deadline and such failure is not excused by Buyer’s failure to perform or by an event of Force Majeure, then Seller shall pay Buyer, within five (5) Business Days of invoice receipt, all Financial Settlement Charges and other penalties and/or charges assessed to Buyer (either directly or through contractual obligation) resulting directly from Seller’s failure to deliver all or part of the Product. In addition, to the extent that Seller’s failure to deliver all or part of the Product results in Buyer being assessed (i) Financial Settlement Charges and other penalties and/or charges for an amount of MW that is less than the Contract Quantity that Seller failed to deliver, or (ii) no Financial Settlement Charges and other penalties and/or charges for the Contract Quantity that Seller failed to deliver, then Buyer shall also be entitled to the positive difference, if any, obtained by subtracting the Contract Price from the Replacement Price and multiplying such positive difference, if any, by the portion of the Contract Quantity which Seller failed to deliver and for which no Financial Settlement Charges and other penalties and/or charges are assessed to Buyer. “Replacement Price” means the price at which Buyer, acting in a commercially reasonable manner, purchases substitute or replacement Product for
Liability for Non Performance. Art. 66.
Liability for Non Performance. Should the Subscriber demonstrate that youRhere has not performed its obligations under the Plan selected, youRhere shall credit one month’s Fees to the Subscriber for the period when the breach has occurred. youRhere’s maximum liability under this agreement is limited to the amount of the one year of annual fees.
Liability for Non Performance
