Common use of SERVICE FAILURE AND MATERIAL BREACH Clause in Contracts

SERVICE FAILURE AND MATERIAL BREACH. Notwithstanding its obligations under Clause 11.2, the Provider shall notify the Company as soon as reasonably practicable upon becoming aware of the inability (howsoever caused) of the Provider to provide the Flexibility Services in all or any part of any contracted Service Window. In the event of a Service Failure by the Provider, the Company may require the Provider to: provide the Company with a written explanation as to the cause of the failure of service delivery; implement a rectification plan for improving performance and/or reducing the number of occurrences of Unavailability, which may include at the Company’s discretion, a repeat of any commissioning tests undertaken on initial installation and commissioning of the DER; propose a variation to the Service Requirements as specified in Schedule 1; or take any other action that may be agreed with the Company in order to alleviate a Service Failure (as reasonably required in the circumstances). If the Provider fails to comply with the terms of Clause 11.2, the Providers proposals are not accepted by the Company, the Parties fail to reach agreement on actions or the Provider’s performance in respect of the Service Failure notified by the Company does not significantly improve within thirty (30) days of the date of the notice, such failure will be deemed a material breach of this Agreement for the purposes of Clause 10.1. Where the Company terminates this Agreement as a result of a material and/or persistent breach by the Provider under Clause 10.1, the Company shall be entitled to recover from the Provider the cost, loss and expenses reasonably incurred by the Company as a result of the termination, including where relevant appointing a replacement Provider. Such costs, losses and expenses shall be a debt due and immediately payable by the Provider to the Company subject to the cap of liabilities across this Agreement as stated in clause 13.

SERVICE FAILURE AND MATERIAL BREACH. Notwithstanding its obligations under Clause 11.213.2, the Provider shall notify the Company as soon as reasonably practicable upon becoming aware of the inability (howsoever caused) of the Provider to provide the Flexibility Services in all or any part of any contracted Service Window. In the event of a Service Failure by the Provider, the Company may require the Provider to: provide the Company with a written explanation as to the cause of the failure of service delivery; implement a rectification plan for improving performance and/or reducing the number of occurrences of Unavailability, which may include at the Company’s discretion, a repeat of any commissioning tests undertaken on initial installation and commissioning of the DER; propose a variation to the Service Requirements as specified in Schedule 1; or take any other action that may be agreed with specified by the Company in order to alleviate a Service Failure (as reasonably required in the circumstances). If the Provider fails to comply with the terms of Clause 11.213.2, the Providers proposals are not accepted by the Company, the Parties fail to reach agreement on actions or the Provider’s performance in respect of the Service Failure notified by the Company does not significantly improve within thirty (30) days of the date of the notice, such failure will be deemed a material breach of this Agreement for the purposes of Clause 10.112.1. Where the Company terminates this Agreement as a result of a material and/or persistent breach by the Provider under Clause 10.112.1, the Company shall be entitled to recover from the Provider the additional cost, loss Loss and expenses expense reasonably incurred by the Company as a result of the termination, including where relevant appointing a replacement Provider. Such costs, losses and expenses the amount of this, Loss shall be a debt due and immediately payable by the Provider to the Company subject to the cap of liabilities across this Agreement as stated in clause 13Company.

SERVICE FAILURE AND MATERIAL BREACH. Notwithstanding its obligations under Clause 11.2, the Provider shall notify the Company as soon as reasonably practicable upon becoming aware of the inability (howsoever caused) of the Provider to provide the Flexibility Services in all or any part of any contracted Service Window. In the event of a Service Failure by the Provider, the Company may require the Provider to: provide the Company with a written explanation as to the cause of the failure of service delivery; implement a rectification plan for improving performance and/or reducing the number of occurrences of Unavailability, which may include at the Company’s discretion, a repeat of any commissioning tests undertaken on initial installation and commissioning of the DER; propose a variation to the Service Requirements as specified in Schedule 1; or take any other action that may be agreed with the Company in order to alleviate a Service Failure (as reasonably required in the circumstances). If the Provider fails to comply with the terms of Clause 11.2, the Providers Provider’s proposals are not accepted by the Company, the Parties fail to reach agreement on actions or the Provider’s performance in respect of the Service Failure notified by the Company does not significantly improve within thirty (30) days of the date of the notice, such failure will be deemed a material breach of this Agreement for the purposes of Clause 10.1. Where the Company terminates this Agreement as a result of a material and/or persistent breach by the Provider under Clause 10.1, the Company shall be entitled to recover from the Provider the cost, loss and expenses reasonably incurred by the Company as a result of the termination, including where relevant appointing a replacement Provider. Such costs, losses and expenses shall be a debt due and immediately payable by the Provider to the Company subject to the cap of liabilities across this Agreement as stated in clause 13.