Common use of Performance Excused Clause in Contracts

Performance Excused. Subject to Section 3.6(a), to the extent either Party is prevented by Force Majeure from carrying out, in whole or part, its obligations under this Agreement, then such Party (the “Affected Party”) shall be excused from the performance of its obligations under this Agreement (but not from the payment of liquidated damages or another express measure of damages, if any, set forth in this Agreement that may arise out of such non- performance, unless and except to the extent that Force Majeure is expressly taken into account in the calculation for such express measure of damages provided for herein), provided that (a) the Affected Party gives notice and details of the Force Majeure (in addition to any notices and information required to be provided by Seller under Section 9.7, if applicable), including the basis and particulars of the claim of Force Majeure, its effect on the Affected Party’s performance hereunder, its best estimate of its schedule for overcoming the Force Majeure and any other information necessary for the other Party to verify the validity and length of the Force Majeure excuse (the “FM Claims Notice”), to the other Party as soon as practicable, (b) the Affected Party works diligently to resolve the effect of the Force Majeure and resume performance as soon as possible and provides evidence of its efforts promptly to the other Party upon the other Party’s written request and (c) in no event shall the suspension of performance be of greater scope or longer duration than the Force Majeure requires (assuming compliance with clause (b) above). The Affected Party shall give the other Party periodic written reports (no less often than weekly) on the status of the Affected Party’s efforts to remedy its inability to perform and its best estimate of when it will be able to resume performance. Further, when the Affected Party is able to resume performance of its obligations under this Agreement, the Affected Party shall promptly give the other Party notice to that effect. The Party that is not the Affected Party shall not be required to perform or resume performance of its obligations (including payment obligations) corresponding to the obligations of the Affected Party excused by Force Majeure until such time and to the extent the Affected Party resumes its performance.

Performance Excused. Subject (a) If a Party is unable, wholly or partially, to Section 3.6(a)perform or comply with its obligations hereunder, then the Party so affected by Force Majeure shall be excused and relieved from performing or complying with such obligations, but not its other obligations hereunder not affected by Force Majeure, and shall not be liable for any Liabilities, damages, losses, payments, costs, expenses to, or incurred by, the other Party in respect of or relating to such Force Majeure and such Party’s failure to so perform or comply during the continuance and to the extent either Party is prevented by Force Majeure from carrying out, in whole or part, its obligations under this Agreement, then such Party (the “Affected Party”) shall be excused from the performance of its obligations under this Agreement (but not from the payment of liquidated damages or another express measure of damages, if any, set forth in this Agreement that may arise out of such non- performance, unless and except to the extent that Force Majeure is expressly taken into account in the calculation for such express measure of damages provided for herein), provided that (a) the Affected Party gives notice and details of the Force Majeure (in addition to any notices inability so caused from and information required to be provided by Seller under Section 9.7, if applicable), including after the basis and particulars of the claim invocation of Force Majeure, its effect on the Affected Party’s performance hereunder, its best estimate of its schedule for overcoming the . (b) A Party shall be deemed to have invoked Force Majeure and any other information necessary for with effect from the other Party to verify the validity and length commencement of the event or circumstances constituting Force Majeure excuse (the “FM Claims Notice”), when that Party gives to the other Party as soon as practicableprompt Notice, written or oral (bbut if oral, promptly confirmed in writing) the Affected Party works diligently to resolve of the effect of the Force Majeure and resume performance reasonably full particulars of the cause thereof, provided that such Notice shall be given within five (5) Working Days of the date that the Party invoking Force Majeure knows or ought to have known that the event of circumstances constituting Force Majeure could have an effect on the Project Schedule. For greater certainty, the reporting or discussion of a Force Majeure event provided in a periodic report from the Contractor to the Owner under this Agreement shall not constitute sufficient initial Notice of the occurrence of a Force Majeure event. The burden of proof as soon to whether a Force Majeure has occurred shall be on the Party invoking the Force Majeure and it shall respond to all requests of the other Party with respect to the Force Majeure in compliance with the terms of this Article 24. (c) The Party invoking Force Majeure shall use Commercially Reasonable Efforts to remedy and mitigate the effects of the Force Majeure and remove, so far as possible and provides evidence with reasonable dispatch, the Force Majeure, but the decision as to whether to settle strikes, lockouts and other labour disturbances shall be wholly within the sole discretion of its efforts promptly the Party involved. (d) The Party invoking Force Majeure shall provide reports to the other Party upon the other Party’s written request from time to time (and at least every ten (c10) in no event shall the suspension of performance be of greater scope or longer duration than the Force Majeure requires (assuming compliance Working Days) with clause (b) above). The Affected Party shall give the other Party periodic written reports (no less often than weekly) on respect to the status of the Affected Party’s efforts Force Majeure, the steps taken by the affected Party to remedy its inability to perform the Force Majeure and its best estimate the anticipated termination date of when it will be able to resume performancethe Force Majeure. Further, when The Party invoking Force Majeure shall give prompt written Notice of the Affected Party is able termination of the event of Force Majeure and agrees to resume performance of the obligations affected immediately upon such termination of the Force Majeure event. (e) Nothing in this Section 24.1.3 shall relieve a Party of its obligations under this Agreement, to make payments of any amounts that were due and owing before the Affected Party shall promptly give occurrence of the other Party notice to Force Majeure or that effectotherwise may become due and payable during any period of Force Majeure. The Party that is not the Affected In addition a Party shall not be required relieved from any obligation not affected by the event of Force Majeure and shall continue to perform or resume performance such obligations hereunder. (f) If, by reason of its obligations Force Majeure, the Substantial Performance Date is delayed by more than six (including payment obligations6) corresponding months after the original Guaranteed Substantial Performance Date, prior to any extension pursuant to Section 24.1.3(a), then notwithstanding anything in this Agreement to the obligations of contrary, the Affected Party excused by Force Majeure until such time and Owner may terminate this Agreement upon Notice to the extent the Affected Contractor and without any costs or payments of any kind to either Party resumes its performanceand all security shall be returned forthwith.

Performance Excused. Subject to Section 3.6(a), to the extent either Party is prevented by Force Majeure from carrying out, in whole or part, its obligations under this Agreement, then such Party (the “Affected Party”) shall be excused from the performance of its obligations under this Agreement (but not from the payment of liquidated damages or another express measure of damages, if any, set forth in this Agreement that may arise out of such non- performance, unless and except to the extent that Force Majeure is expressly taken into account in the calculation for such express measure of damages provided for herein), provided that (a) the Affected Party gives notice and details of the Force Majeure (in addition to any notices and information required to be provided by Seller under Section 9.7, if applicable), including the basis and particulars of the claim of Force Majeure, its effect on the Affected Party’s performance hereunder, its best estimate of its schedule for overcoming the Force Majeure and any other information necessary for the other Party to verify the validity and length of the Force Majeure excuse (the “FM Claims Notice”), to the other Party as soon as practicable, (b) the Affected Party works diligently to resolve the effect of the Force Majeure and resume performance as soon as possible and provides evidence of its efforts promptly to the other Party upon the other Party’s written request and (c) in no event shall the suspension of performance be of greater scope or longer duration than the Force Majeure requires (assuming compliance with clause (b) above). The Affected Party shall give the other Party periodic written reports (no less often than weekly) on the status of the Affected Party’s efforts to remedy its inability to perform and its best estimate of when it will be able to resume performance. Further, when the Affected Party is able to resume performance of its obligations under this Agreement, the Affected Party shall promptly give the other Party notice to that effect. The Party that is not the Affected Party shall not be required to perform or resume performance of its obligations (including payment obligations) corresponding to the obligations of the Affected Party excused by Force Majeure until such time and to the extent the Affected Party resumes its performance.

Performance Excused. Subject to Section 3.6(a), to the extent If either Party is prevented by Force Majeure from carrying out, in whole rendered wholly or part, partially unable to perform its obligations under this Agreementthe Agreement Documents due to a Force Majeure Event, then such that Party (the “Affected Party”) shall be excused from whatever performance is affected by the performance of its obligations under this Agreement (but not from Force Majeure Event to the payment of liquidated damages or another express measure of damagesextent so affected, if any, and the Guaranteed Completion Dates and Milestones set forth in this Agreement that may arise out of the Project Schedule so affected shall be extended and such non- performanceProject Schedule shall be updated; provided, unless and except to that: 8.1.1 the extent that Party claiming a Force Majeure is expressly taken into account in the calculation for such express measure of damages provided for herein), provided that (a) the Affected Party gives notice and details of the Force Majeure (in addition to any notices and information required to be provided by Seller under Section 9.7, if applicable), including the basis and particulars of the claim of Force Majeure, its effect on the Affected Party’s performance hereunder, its best estimate of its schedule for overcoming the Force Majeure and any other information necessary for the other Party to verify the validity and length of the Force Majeure excuse (the “FM Claims Notice”), to the other Party as soon as practicable, (b) the Affected Party works diligently to resolve the effect of the Force Majeure and resume performance as soon as possible and provides evidence of its efforts promptly to the other Party upon the other Party’s written request and (c) in no event shall the suspension of performance be of greater scope or longer duration than the Force Majeure requires (assuming compliance with clause (b) above). The Affected Party Event shall give the other Party periodic written reports (no less often than weekly) prompt notice describing the particulars of the cause and nature of the occurrence. The Party claiming a Force Majeure Event shall give the other Party sufficient proof of the occurrence of such Force Majeure Event and notice estimating the Force Majeure Event’s expected duration and probable impact on the status performance of such Party’s obligations hereunder, and such affected Party shall continue to furnish timely regular reports with respect thereto during the continuation of the Affected Force Majeure Event or its impact on the affected Party’s performance; 8.1.2 no breach or default of either Party which arose before the occurrence of the Force Majeure Event causing the suspension of performance shall be excused as a result of the occurrence, but so long as the affected Party shall have commenced and is diligently continuing to attempt to cure such default prior to the occurrence of the Force Majeure Event, the cure period (if any) provided in this Agreement with respect to such default shall be extended on a Day-for-Day basis to the extent a cure actually is prevented as a result of the Force Majeure Event; 8.1.3 the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the Force Majeure Event; 8.1.4 the affected Party shall exercise all reasonable efforts to mitigate or limit damages to the other Party; 8.1.5 the affected Party shall exercise commercially reasonable efforts to alleviate and mitigate the cause and effect of such Force Majeure Event, remedy its inability to perform, and limit damages to the other Party; 8.1.6 the affected Party shall use all reasonable efforts to continue to perform its obligations hereunder and its best estimate of when it will be able to resume limit, correct or cure the event or condition excusing performance. Further, ; and 8.1.7 when the Affected affected Party is able to resume performance of its the affected obligations under this Agreementthe Agreement Documents, the Affected that Party shall promptly give the other Party written notice to that effect. The Party that is not , a Scope Change Order shall be executed pursuant to Section 9.9 to account for the Affected Party shall not be required to perform or resume actual effect, if any, on the affected Party’s performance of its obligations by the Force Majeure Event, and the affected Party promptly shall resume performance under the Agreement Documents; and 8.1.8 Unless Owner elects in writing, in the form of a Scope Change Order, to require Contractor to accelerate its schedule, Contractor shall not be entitled to an adjustment of the Agreement Price based on any Force Majeure Event; except that if one or more Force Majeure Events render Contractor unable to perform (including payment obligationsand Contractor is excused, in accordance with the foregoing provisions of this Section 8.1, from its non-performance of) corresponding any material Work at the Project Site for an aggregate amount of time that exceeds three (3) Days (“Extended Force Majeure Event”), Contractor shall be entitled to an adjustment to the obligations Agreement Price to reflect additional costs and expenses incurred or to be incurred by Contractor as a result of such Extended Force Majeure Event. The adjustment to the Agreement Price caused by an Extended Force Majeure Event shall be offset by any insurance proceeds available (to Contractor or Owner) as a result of the Affected Party excused by Extended Force Majeure until such time and to the extent the Affected Party resumes its performanceEvent.

Performance Excused. Subject to Section 3.6(a), to the extent either Party is prevented by Force Majeure from carrying out, in whole or part, its obligations under this Agreement, then such Party (the “Affected Party”) shall be excused from the performance of its obligations under this Agreement (but not from the payment of liquidated damages or another express measure of damages, if any, set forth in this Agreement that may arise out of such non- performance, unless and except to the extent that Force Majeure is expressly taken into account in the calculation for such express measure of damages provided for herein), provided that (a) the Affected Party gives notice and details of the Force Majeure (in addition to any notices and information required to be provided by Seller under Section 9.7, if applicable), including the basis and particulars of the claim of Force Majeure, its effect on the Affected Party’s performance hereunder, its best estimate of its schedule for overcoming the Force Majeure and any other information necessary for the other Party to verify the validity and length of the Force Majeure excuse (the “FM Claims Notice”), to the other Party as soon as practicable, (b) the Affected Party works diligently to resolve the effect of the Force Majeure and resume performance as soon as possible and provides evidence of its efforts promptly to the other Party upon the other Party’s written request and (c) in no event shall the suspension of performance be of greater scope or 80 NTD: Parties to discuss details regarding the Buyer purchase option, including pricing and terms of the purchase. longer duration than the Force Majeure requires (assuming compliance with clause (b) above). The Affected Party shall give the other Party periodic written reports (no less often than weekly) on the status of the Affected Party’s efforts to remedy its inability to perform and its best estimate of when it will be able to resume performance. Further, when the Affected Party is able to resume performance of its obligations under this Agreement, the Affected Party shall promptly give the other Party notice to that effect. The Party that is not the Affected Party shall not be required to perform or resume performance of its obligations (including payment obligations) corresponding to the obligations of the Affected Party excused by Force Majeure until such time and to the extent the Affected Party resumes its performance.

Performance Excused. Subject to Section 3.6(a), to So long as the extent either Party is prevented by Force Majeure from carrying out, in whole or part, its obligations under this Agreement, then such Party (the “Affected Party”) shall be excused from the performance of its obligations under this Agreement (but not from the payment of liquidated damages or another express measure of damages, if any, conditions set forth in this Section 8.1 are satisfied, neither Party shall be responsible or liable for or deemed in breach of this Agreement that may arise out because of such non- performance, unless and except any failure or delay in complying with its obligations (other than payment obligations) under or pursuant to this Agreement to the extent that such failure has been caused, or contributed to, by one or more Force Majeure is expressly taken into account Events or its effects or by any combination thereof, and in the calculation for such express measure of damages provided for herein), provided that event: (a) the Affected Party gives notice and details of the claiming a Force Majeure (in addition to any notices and information required to be provided by Seller under Section 9.7, if applicable), including the basis and particulars of the claim of Force Majeure, its effect on the Affected Party’s performance hereunder, its best estimate of its schedule for overcoming the Force Majeure and any other information necessary for the other Party to verify the validity and length of the Force Majeure excuse (the “FM Claims Notice”), to the other Party as soon as practicable, (b) the Affected Party works diligently to resolve the effect of the Force Majeure and resume performance as soon as possible and provides evidence of its efforts promptly to the other Party upon the other Party’s written request and (c) in no event shall the suspension of performance be of greater scope or longer duration than the Force Majeure requires (assuming compliance with clause (b) above). The Affected Party Event shall give the other Party periodic notice describing the particulars of the cause and nature of the occurrence, with written reports notice given promptly after discovery and in no event more than five (no less often than weekly5) Business Days after the affected Party becomes aware of such occurrence and as soon as reasonably practicable, but in any case within ten (10) Business Days after such initial notification, the Party claiming a Force Majeure Event shall give the other Party sufficient proof of the occurrence of such Force Majeure Event and written notice estimating the Force Majeure Event’s expected duration and probable impact on the status performance of such Party’s obligations hereunder, and such affected Party shall continue to furnish timely regular reports with respect thereto during the continuation of the Affected Party’s Force Majeure Event; (b) the performance of the Party claiming the Force Majeure Event of its obligations hereunder shall be suspended, provided the suspension of performance shall be of no greater scope and of no longer duration than is reasonably required by the effects of the Force Majeure Event; (c) any liability of either Party which arose before the occurrence of the Force Majeure Event causing the suspension of performance shall not be excused as a result of the occurrence; (d) the affected Party shall continually exercise all commercially reasonable efforts to alleviate and mitigate the cause and effect of such Force Majeure Event, remedy its inability to perform, and limit damages to the other Party; (e) the affected Party shall use all commercially reasonable efforts to continue to perform its obligations hereunder and its best estimate of when it will be able to resume correct or cure the event or condition excusing performance. Further, ; (f) when the Affected affected Party is able to resume performance of its the affected obligations under this Agreement, the Affected that Party shall promptly give the other Party written notice to that effect. The , and the affected Party that is not the Affected Party promptly shall not be required to perform or resume performance under this Agreement; and (g) in the event Contractor desires to claim a Force Majeure Event, it must submit a request for a Scope Change pursuant to Section 9.6, and Contractor shall be entitled to a Scope Change Order permitting a suspension of its obligations performance or extension of time (including payment obligations) corresponding to the obligations an extension of the Affected Party excused by Force Majeure until such time and Critical Milestone Dates to the extent achievement thereof is affected) in accordance with Section 9.6. 8.1.1 A Party’s failure to comply with the Affected Party resumes its performanceprovisions of this Section 8.1 shall constitute a waiver of any claim of a Force Majeure Event.