Shortfall Damages Sample Clauses

Shortfall Damages. “Shortfall Damages” shall have the definition set forth in the Power Purchase Agreement
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Shortfall Damages. If, in any Billing Year, Seller fails to meet the Output Guarantee, Seller shall pay to Purchaser, as liquidated damages, an amount (the “Shortfall Damages”) equal to the product of (i) the amount (in kWh) by which the Output Guarantee for the Billing Year exceeds the actual Output to Purchaser during such Billing Year times (ii) the positive difference between (A) the average all-in rate ($/kWh) as reasonably calculated by Purchaser by using the prior twelve (12) months host utility xxxxxxxx, paid or payable by or on behalf of Purchaser to the Utility for electricity supplied by the Utility (taking into account any and all distribution service, customer, distribution demand, and electricity supply service charges, and all other charges, riders, and adjustments) to the Project Site minus
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Shortfall Damages. If, in any Billing Year, Seller fails to meet the Output Guarantee, Seller shall pay to Purchaser, as liquidated damages, an amount (the “Shortfall Damages”) equal to the product of (i) the amount (in kWh) by which the Output Guarantee for the Billing Year exceeds the actual Output to Purchaser during such Billing Year times (b) the Contract Rate ($/kWh) for the applicable Billing Year. In no event shall the Shortfall Damages be less than zero dollar ($0). Unless Purchaser disputes the data or calculations set forth in the Annual Performance Guarantee Statement within [thirty (30)] Days following receipt thereof, the Shortfall Damages, if any, shall be applied against and reduce the Monthly Invoice payable by Purchaser to Seller for the immediately succeeding Billing Month, or upon Purchaser’s request, Seller shall pay the Shortfall Damages to Purchaser. The Parties acknowledge and agree that the damages that Purchaser would incur due to shortfalls in Output would be difficult or impossible to predict with certainty, and it is impractical and difficult to assess actual damages in those circumstances and, therefore, Shortfall Damages are a fair and reasonable calculation of such damages.
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Shortfall Damages. In the event that Seller fails to achieve the Committed Load Reduction during the Measurable Program Hours of a Program Event or Capacity Test, Seller shall pay APS Shortfall Damages on the date payment is due in accordance with Section 8.1, subject to the netting provisions of Section 8.4. The invoice for such amount shall include a written statement explaining in reasonable detail the calculation of such amount. ***. Shortfall Damages shall be calculated on an hourly basis as follows: Load Reduction Shortfall = The Committed Load Reduction – Delivered Load Reduction for each Event hour during Measurable Program Hours Shortfall Damages = *** In the event the Shortfall Damages are a negative number than the Shortfall Damages shall be deemed to be zero (-0-) dollars.
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Shortfall Damages. If Xxxxx has elected to receive Shortfall Damages under Section 9.3, or Seller fails to make up the full amount of any Shortfall Energy by the end of the Replacement Product Period, Seller shall within thirty (30) days after the end of the applicable period pay Buyer damages, which damages shall be an amount, for each MWh of remaining Shortfall Energy, equal to the positive difference, if any, obtained by subtracting (a) the Contract Price from (b) the Replacement Price, and adding the amount of all documented and reasonable out-of-pocket costs and expenses incurred by Buyer to purchase such Replacement Product (“Shortfall Damages”). If Seller fails to pay Buyer the Shortfall Damages within such thirty (30) day period, Buyer shall have the right to immediately draw the applicable amount of Shortfall Damages owed to Buyer from the Delivery Term Security.
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Shortfall Damages. If, in any Billing Year, Seller fails to meet the Output Guarantee, Seller shall pay to Purchaser, as liquidated damages, an amount (the “Shortfall Damages”) equal to the product of (i) the amount (in kWh) by which the Output Guarantee for the Billing Year exceeds the actual Output to Purchaser during such Billing Year times (ii) the positive difference, if any, between (A) the average all-in rate ($/kWh), as reasonably calculated by Purchaser (taking into account any and all distribution service, customer, distribution demand, and electricity supply service charges, and all other charges, riders, adjustments, fees and expenses payable by or on behalf of Purchaser to the Utility during the applicable Billing Year), paid or payable by or on behalf of Purchaser to the Utility for electricity supplied by the Utility to the Project Site (or, in the case of virtual net metering, such other site as designated from time to time by Purchaser) for the applicable Billing Year and (B) the Contract Price ($/kWh) for the applicable Billing Year. In no event shall the Shortfall Damages be less than zero dollar ($0). Unless Purchaser disputes the data or calculations set forth in the Annual Performance Guarantee Statement within thirty (30) Days following receipt thereof, the Shortfall Damages, if any, shall be applied against and reduce the Monthly Invoice payable by Purchaser to Seller for the immediately succeeding Billing Month, or upon Purchaser’s request, Seller shall pay the Shortfall Damages to Purchaser. The Parties acknowledge and agree that the damages that Purchaser would incur due to shortfalls in Output would be difficult or impossible to predict with certainty, and it is impractical and difficult to assess actual damages in those circumstances and, therefore, Shortfall Damages are a fair and reasonable calculation of such damages.
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Shortfall Damages. If Seller is required to pay damages pursuant to Section 9.2, such damages shall be an amount, for each MWh of remaining Shortfall Energy, equal to the positive difference, if any, obtained by subtracting (a) the Fixed Rate from (b) the Replacement Price, and adding, in the case of the positive difference, the amount of all documented and reasonable out-of-pocket costs and expenses incurred by such Buyer to purchase such Replacement Product (“Shortfall Damages”). If Seller fails to pay any Buyer its proportionate share of the Shortfall Damages prior to the end of the Shortfall Makeup Period, such Buyer shall have the right, as early as the last day of such Shortfall Makeup Period, to draw the applicable amount of Shortfall Damages owed to such Buyer from the Delivery Term Security. The Shortfall Damages payable under this Section 9.3 shall be each Buyer’s sole remedy, and Seller’s sole liability, for Seller’s failure to achieve the Guaranteed Generation and to deliver Replacement Product in the amount of the Shortfall Energy, except that the foregoing shall not limit any Buyer’s right to withdraw from or terminate this Agreement under Section 9.5 or exercise any right or remedy available under this Agreement or at law or in equity for any Default occurring concurrently with or before or after the accrual of such Shortfall Energy.
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Shortfall Damages. If Shortfall Damages are indicated under the agreement, the Shortfall Damages applicable to Buyer for any Contract Month during the two‐year duration of Shortfall Damages will be calculated as follows: Shortfall Damages Payment = (((AES1 + AES2) – (AEE1 + AEE2)) * ESP * BLRS) / 24 Where: AES1 = The Minimum Annual Energy less the amount of Net Energy actually delivered, in the first of the two Contract Years in which Seller did not reach Minimum Annual Energy. AES2 = The Minimum Annual Energy less the amount of Net Energy actually delivered, in the second of the two Contract Years in which Seller did not reach Minimum Annual Energy. AEE1 = The amount by which Seller exceeded the Minimum Annual Energy in the first year after the two years in which there was an Annual Energy Shortfall. AEE2 = The amount by which Seller exceeded the Minimum Annual Energy in the second year after the two years in which there was an Annual Energy Shortfall. ESP = Energy Shortfall Price = the mathematical average of the 24 individual Monthly location marginal prices of electricity, as measured at the Project’s busbar, for the applicable 2 consecutive years in which there was a Minimum Energy Shortfall BLRS = Buyers Load Ratio Share = a fraction the numerator of which is the total of the Monthly Final Buyer Retail Sales and the denominator of which is the total of the Final Total Retail Load during the applicable 2 Contract Years.
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Related to Shortfall Damages

  • Consequential Damages Neither party to this Agreement shall be liable to the other party for special, indirect or consequential damages under any provision of this Agreement or for any special, indirect or consequential damages arising out of any act or failure to act hereunder.

  • Termination Damages If the Term of this Lease is terminated for default, unless and until Landlord elects lump sum liquidated damages described in the next paragraph, Tenant covenants, as an additional, cumulative obligation after any such termination, to pay punctually to Landlord all the sums and perform all of its obligations in the same manner as if the Term had not been terminated. In calculating such amounts Tenant will be credited with the net proceeds of any rent then actually received by Landlord from a reletting of the Premises after deducting all Rent that has not then been paid by Tenant, provided that Tenant shall never be entitled to receive any portion of the re-letting proceeds, even if the same exceed the Rent originally due hereunder.

  • Direct Damages A PARTY’S DAMAGES RESULTING FROM A BREACH OR VIOLATION OF ANY REPRESENTATION, WARRANTY, COVENANT, AGREEMENT OR CONDITION CONTAINED IN THIS AGREEMENT OR ANY ACT OR OMISSION ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO ACTUAL DIRECT DAMAGES AND SHALL NOT INCLUDE ANY OTHER LOSS OR DAMAGE, INCLUDING INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, PRODUCTION, OR REVENUES, AND EACH PARTY RELEASES THE OTHER PARTY FROM ALL SUCH CLAIMS FOR LOSS OR DAMAGE OTHER THAN ACTUAL DIRECT DAMAGES; PROVIDED THAT THIS LIMITATION TO DIRECT DAMAGES SHALL NOT LIMIT THE PARTIES’ INDEMNIFICATION OBLIGATIONS UNDER Section 3.5(c), Section 7.3, AND Article 15.

  • Punitive Damages The Administrative Agent, the Lenders and the Borrower hereby agree that no such Person shall have a remedy of punitive or exemplary damages against any other party to a Loan Document and each such Person hereby waives any right or claim to punitive or exemplary damages that they may now have or may arise in the future in connection with any Dispute, whether such Dispute is resolved through arbitration or judicially.

  • Special Damages NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, AND EXCEPT AS PROVIDED BELOW, IN NO EVENT WILL EITHER PARTY OR ANY PERSON IN ITS GROUP BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT, COLLATERAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS SUFFERED BY AN INDEMNITEE, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, IN CONNECTION WITH ANY DAMAGES ARISING HEREUNDER OR THEREUNDER; PROVIDED, HOWEVER, THAT TO THE EXTENT AN INDEMNIFIED PARTY IS REQUIRED TO PAY ANY DAMAGES, INCLUDING SPECIAL, INCIDENTAL, INDIRECT, COLLATERAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS (OTHER THAN DAMAGES OR LOST PROFITS CONSTITUTING EXCLUDED LIABILITIES), TO A PERSON WHO IS NOT IN EITHER GROUP IN CONNECTION WITH A THIRD PARTY CLAIM, SUCH DAMAGES WILL CONSTITUTE DIRECT DAMAGES AND WILL NOT BE SUBJECT TO THE LIMITATION SET FORTH IN THIS SECTION 11.17.

  • Payment of Damages The indemnification required hereunder shall be made by periodic payments of the amount thereof during the course of the investigation or defense, within 10 days as and when reasonably specific bills are received or loss, liability, claim, damage or expense is incurred and reasonable evidence thereof is delivered. In calculating any amount to be paid by an indemnifying party by reason of the provisions of this Agreement, the amount shall be reduced by all reimbursements (including, without limitation, insurance proceeds) credited to or received by the other party related to the Damages.

  • No Consequential Damages Other than the Liquidated Damages heretofore described and the indemnity obligations set forth in Article 18.1, in no event shall any Party be liable under any provision of this Agreement for any losses, damages, costs or expenses for any special, indirect, incidental, consequential, or punitive damages, including but not limited to loss of profit or revenue, loss of the use of equipment, cost of capital, cost of temporary equipment or services, whether based in whole or in part in contract, in tort, including negligence, strict liability, or any other theory of liability; provided, however, that damages for which a Party may be liable to another Party under separate agreement will not be considered to be special, indirect, incidental, or consequential damages hereunder.

  • INDIRECT/SPECIAL/CONSEQUENTIAL DAMAGES Notwithstanding any other provision set forth herein, in no event shall the Custodian be liable for any special, indirect, incidental, punitive or consequential damages of any kind whatsoever (including, without limitation, lost profits) with respect to the services provided pursuant to this Agreement, regardless of whether either party has been advised of the possibility of such damages.

  • Consequential Loss Notwithstanding anything contained in this Agreement, neither Party shall be liable to the other Party for any indirect, special, consequential, punitive, and/or exemplary damages or losses arising from any act or omission by that Party relating to this Agreement and each Party (the “Indemnifying Party”) shall defend, indemnify and hold the other Party (the “Indemnified Party”) harmless in respect of any and all such indirect, special, consequential, punitive, and/or exemplary damages or losses suffered or incurred by the Indemnifying Party (provided that nothing in this Clause 16 shall relieve any Party from any express obligation under this Agreement to make any payment to another).

  • Limitation on Consequential Damages NEITHER PARTY WILL HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), REPRESENTATION, STRICT LIABILITY OR PRODUCT LIABILITY), FOR COVER OR FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, MULTIPLIED, PUNITIVE, SPECIAL, OR EXEMPLARY DAMAGES OR LOSS OF REVENUE, PROFIT, SAVINGS OR BUSINESS ARISING FROM OR OTHERWISE RELATED TO THIS AGREEMENT, EVEN IF A PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE PARTIES ACKNOWLEDGE THAT THESE EXCLUSIONS OF POTENTIAL DAMAGES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.

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