Common use of Liquidated Damages Appropriate Clause in Contracts

Liquidated Damages Appropriate. The Parties acknowledge and agree that (a) the damages that Company would incur due to either (i) a delay in achieving Commercial Operations by the Guaranteed Commercial Operations Date (subject to the extensions provided in Section 11.4 (Milestone Dates)); or (ii) the termination of this Agreement, would be difficult or impossible to calculate with certainty; (b) the Daily Delay Damages set forth in Section 11.6 (Damages and Termination) and the Termination Damages calculated in accordance with Section 6.5 (Calculation of Termination Damages), respectively, are an appropriate approximation of such damages; (c) the Daily Delay Damages are the sole and exclusive remedies for Seller’s failure to achieve Commercial Operations by the Guaranteed Commercial Operations Date; and (d) the Termination Damages are the sole and exclusive remedy for Company’s losses arising out of the termination of this Agreement; provided, that (i) payment of Termination Damages does not relieve Seller of liability for costs and balances incurred prior to the effective date of such termination; and (ii) the Termination Damages are not intended to limit Company’s rights or remedies, or Seller’s liabilities or duties, with respect to losses arising independent of the termination of this Agreement, including, without limitation, Company’s right to recover under Section 20.1 (Indemnification of Company). DISPATCHING AND CHARGING THE FACILITY; SCHEDULING Dispatching and Charging the Facility. Company’s Exclusive Rights. Company shall have the exclusive right, through supervisory equipment or otherwise, to direct and control the provision of all aspects of the Energy Storage Services, at any time, as it deems appropriate in its reasonable discretion, subject only to and consistent with Good Engineering and Operating Practices, the operational and performance standards requirements set forth in Section 3 (Performance Standards) of Attachment B (Facility Owned by Seller), and Seller’s maintenance schedule determined in accordance with Section 12.2 (Seller’s Maintenance Schedule) (“Company Dispatch/Charge”). Seller shall make the full capability of the Facility available for Company Dispatch/Charge. Company Dispatch/Charge will either be by Seller’s manual control under the direction of the Company System Operator or by remote computerized control by the Energy Management System provided in Section 1(g) (Active Power Control Interface) of Attachment B (Seller’s Facility), in each case at Company’s reasonable discretion, and in accordance with the Performance Standards.

Liquidated Damages Appropriate. The Parties acknowledge and agree that (a) the damages that Company would incur due to either (i) a delay in achieving Commercial Operations by the Guaranteed Commercial Operations Date (subject to the extensions provided in Section 11.4 (Milestone Dates)); or (ii) the termination of this Agreement, would be difficult or impossible to calculate with certainty; (b) the Daily Delay Damages set forth in Section 11.6 (Damages and Termination) and the Termination Damages calculated in accordance with Section 6.5 (Calculation of Termination Damages), respectively, are an appropriate approximation of such damages; (c) the Daily Delay Damages are the sole and exclusive remedies for Seller’s failure to achieve Commercial Operations by the Guaranteed Commercial Operations Date; and (d) the Termination Damages are the sole and exclusive remedy for Company’s losses arising out of the termination of this Agreement; provided, that (i) payment of Termination Damages does not relieve Seller of liability for costs and balances incurred prior to the effective date of such termination; and (ii) the Termination Damages are not intended to limit Company’s rights or remedies, or Seller’s liabilities or duties, with respect to losses arising independent of the termination of this Agreement, including, without limitation, Company’s right to recover under Section 20.1 (Indemnification of Company). DISPATCHING AND CHARGING THE FACILITY; SCHEDULING Dispatching and Charging the Facility. Company’s Exclusive Rights. Company shall have the exclusive right, through supervisory equipment or otherwise, to direct and control the provision of all aspects of the Energy Storage Services, at any time, as it deems appropriate in its reasonable discretion, subject only to and consistent with Good Engineering and Operating Practices, the operational and performance standards requirements set forth in Section 3 (Performance Standards) of Attachment B (Facility Owned by Seller), and Seller’s maintenance schedule determined in accordance with Section 12.2 (Seller’s Maintenance Schedule) (“Company Dispatch/Charge”). Seller shall make the full capability of the Facility available for Company Dispatch/Charge. Company Dispatch/Charge will either be by Seller’s manual control under the direction of the Company System Operator or by remote computerized control by the Energy Management System provided in Section 1(g) (Active Power Control Interface) of Attachment B (Seller’s Facility), in each case at Company’s reasonable discretion, and in accordance with the Performance StandardsStandards (in particular, the frequency response). This includes specification of the frequency response mode. When in Fast Frequency Response mode, the Facility charging/discharging will be determined in accordance with the agreed parameters for maintaining a state of charge.

Liquidated Damages Appropriate. The Parties acknowledge and agree that (a) the damages that Company would incur due to either (i) a delay in achieving Commercial Operations by the Guaranteed Commercial Operations Date (subject to the extensions provided in Section 11.4 (Milestone Dates)); or (ii) the termination of this Agreement, would be difficult or impossible to calculate with certainty; (b) the Daily Delay Damages set forth in Section 11.6 (Damages and Termination) and the Termination Damages calculated in accordance with Section 6.5 (Calculation of Termination Damages), respectively, are an appropriate approximation of such damages; (c) the Daily Delay Damages are the sole and exclusive remedies for Seller’s failure to achieve Commercial Operations by the Guaranteed Commercial Operations Date; and (d) the Termination Damages are the sole and exclusive remedy for Company’s losses arising out of the termination of this Agreement; provided, that (i) payment of Termination Damages does not relieve Seller of liability for costs and balances incurred prior to the effective date of such termination; and (ii) the Termination Damages are not intended to limit Company’s rights or remedies, or Seller’s liabilities or duties, with respect to losses arising independent of the termination of this Agreement, including, without limitation, Company’s right to recover under Section 20.1 (Indemnification of Company). DISPATCHING AND CHARGING THE FACILITY; SCHEDULING Dispatching and Charging the Facility. Company’s Exclusive Rights. Company shall have the exclusive right, through supervisory equipment or otherwise, to direct and control the provision of all aspects of the Energy Storage Services, at any time, as it deems appropriate in its reasonable discretion, subject only to and consistent with Good Engineering and Operating Practices, the operational and performance standards Operational Limitations, the requirements set forth in Section 3 (Performance Standards) of Attachment B (Facility Owned by Seller), and Seller’s maintenance schedule determined in accordance with Section 12.2 (Seller’s Maintenance Schedule) (“Company Dispatch/Charge”). Seller shall make the full capability of the Facility available for Company Dispatch/Charge. Company Dispatch/Charge will either be by Seller’s manual control under the direction of the Company System Operator or by remote computerized control by the Energy Management System provided in Section 1(g) (Active Power Control Interface) of Attachment B (Seller’s Facility), in each case at Company’s reasonable discretion, and in accordance with the Performance Standards.