Common use of Acceptance Tests Clause in Contracts

Acceptance Tests. 5.1 Within a reasonable period following the parties entering into a Scope of Work, the Parties shall work together to agree a set of Acceptance Tests, Test Data and Acceptance Test Criteria with respect to the applicable Developed Software which shall be sufficient to test whether or not the Developed Software has the facilities and functions specified in and performance in accordance with the Functional Specification, such agreement not to be unreasonably withheld or delayed. Supplier shall perform the Acceptance Tests within the Test Period. Customer shall be given reasonable notice of and be entitled to attend the Acceptance Tests. 5.2 If the Developed Software process the Test Data and achieve the Acceptance Test Criteria then it shall be deemed to have passed the Acceptance Tests. Subject to paragraph 5.5, if the Developed Software fails to achieve the Acceptance Test Criteria they shall be deemed to have failed the Acceptance Tests. Customer shall co-operate with Supplier in identifying in what respects (if any) the Developed Software has failed to pass the Acceptance Tests and identify where the Developed Software has failed to conform to the Functional Specification. 5.3 If the Supplier is unable to remedy any failure of the Developed Software so that the Developed Software does not pass the Acceptance Tests or to fix any deficiency in the Developed Software to conform with the Functional Specification within a further 20 days, or such longer period as is agreed between the parties in writing (“Extended Test Period”), then Customer shall be entitled forthwith to reject the Developed Software without further liability to Supplier. 5.4 The written statement of Acceptance will be issued when the relevant Developed Software have passed all the Acceptance Tests as detailed in the Acceptance Test Criteria within the timescales outlined in therein. 5.5 Save where Customer has rejected the Developed Software in accordance with paragraph 5.3, Customer’s Acceptance of the Developed Software shall occur at the earliest of: (a) the Developed Software passing the Acceptance Tests; (b) the Developed Software being used in a live environment or for commercial use; or (c) the expiration of the Test Period and (where applicable) the Extended Test Period. 5.6 Where Customer rejects the Developed Software in accordance with paragraph 5.3 then the following terms shall apply; (a) Supplier shall be obliged to repay to Customer the Development Fees which Customer has paid to Supplier under the applicable Scope of Work for which the rejected Developed Software relate; (b) each party shall within thirty (30) days of such rejection return (or, at the other party’s option, destroy) all Confidential Information in its possession or under its control and all copies of such information; (c) Customer shall have no right to use the Developed Software or any part of it and shall remove or destroy forthwith all copies of the Developed Software or any part thereof or, at Supplier’s request, return all copies of the same to Supplier; and (d) the applicable Scope of Work for the rejected Developed Software shall terminate.

Acceptance Tests. 5.1 Within a reasonable period following the parties entering into a Scope of Work, the Parties shall work together The Goods may be required to agree a set of Acceptance Tests, Test Data and Acceptance Test Criteria with respect to the applicable Developed Software which shall be sufficient to test whether or not the Developed Software has the facilities and functions specified in and performance in accordance with the Functional Specification, such agreement not to be unreasonably withheld or delayed. Supplier shall perform satisfy the Acceptance Tests within to demonstrate that the Test PeriodGoods meet the Goods Specification before they are accepted by Aston. Customer shall be given reasonable notice of and be entitled Aston will notify the Supplier in writing as to attend when the Acceptance Tests. 5.2 If the Developed Software process the Test Data Tests will take place. The Supplier may attend and achieve the Acceptance Test Criteria then it shall be deemed to have passed assist with conducting the Acceptance Tests. Subject The Supplier will be afforded the opportunity to paragraph 5.5, if comment on the Developed Software fails to achieve the Acceptance Test Criteria they shall be deemed to have failed suitability of the Acceptance Tests. Customer shall coAston will record the results of the Acceptance Tests. Aston will notify the Supplier promptly on successful completion of the Acceptance Tests as to whether the Goods satisfy the Acceptance Tests. If the Goods do not satisfy the Acceptance Tests, Aston will notify the Supplier of such failure and may (in its discretion and without prejudice to its other rights under this Agreement): grant a further period of time during which the Supplier will be required to adapt, modify and/or otherwise correct the relevant Goods to comply with the Goods Specification so that the Goods can be re-operate submitted for further testing; or accept the Goods subject to a list of written exceptions which the Supplier will rectify within the timescales agreed by the Parties; or accept the Goods subject to receiving a refund or reduction in Price; or reject any/all of the Goods and terminate this Agreement with immediate effect by giving written notice to the Supplier in identifying accordance with paragraph 23 of this Part 1 without any liability to the Supplier on the basis of a total failure of consideration including any liability to pay any outstanding payments of the Price which, at the time of (and but for) such termination, remain outstanding and are due to be paid to the Supplier. In the event Aston terminates this Agreement pursuant to paragraph 5.6.4 of this Part 1, the Supplier will repay Aston any amounts paid to the Supplier under this Agreement within 14 days of the date of such termination; or complete the supply of the Goods by entering into a contract with a third party and recover from the Supplier any costs incurred by Aston in what respects (if any) the Developed Software has failed obtaining substitute Goods from a third party. The Supplier will ensure that any modifications made as a result of failing to pass the Acceptance Tests and identify where the Developed Software has failed to conform to the Functional Specification. 5.3 If the Supplier is unable to remedy Test will not adversely impact on any failure of the Developed Software so that the Developed Software does not pass the Acceptance Tests or to fix any deficiency in the Developed Software to conform with the Functional Specification within a further 20 days, or such longer period as is agreed between the parties in writing (“Extended Test Period”), then Customer shall be entitled forthwith to reject the Developed Software without further liability to Supplier. 5.4 The written statement of Acceptance will be issued when the relevant Developed Software have passed all the Acceptance Tests as detailed in the previously successful Acceptance Test Criteria within the timescales outlined in therein. 5.5 Save where Customer has rejected the Developed Software in accordance with paragraph 5.3, Customer’s Acceptance of the Developed Software shall occur at the earliest of: or (a) the Developed Software passing the Acceptance Tests; (b) the Developed Software being used in a live environment or for commercial use; or (c) the expiration of the Test Period and (where as applicable) the Extended Test Period. 5.6 Where Customer rejects approval procedure in respect of any other Goods. To the Developed Software extent that any such adverse impacts occur, the Supplier will be liable to Aston for Aston’s reasonable costs in accordance with paragraph 5.3 then conducting further tests. Aston will notify the following terms shall apply; (a) Supplier shall be obliged to repay to Customer the Development Fees which Customer has paid to Supplier under the applicable Scope of Work for which the rejected Developed Software relate; (b) each party shall within thirty (30) 30 days of such rejection return (or, at receiving the other party’s option, destroy) all Confidential Information in its possession or under its control and all copies modified Goods pursuant to paragraph 5.6.1 of such information; (c) Customer shall have no right to use this Part 1 confirming whether the Developed Software or any part of it and shall remove or destroy forthwith all copies of modified Goods meet the Developed Software or any part thereof or, at Supplier’s request, return all copies of the same to Supplier; and (d) the applicable Scope of Work for the rejected Developed Software shall terminateGoods Specification.

Acceptance Tests. 5.1 Within a reasonable period following During the parties entering into a Scope performance of Workthe CONTRACT, the Parties CONTRACT may elect between follow up the acceptance tests on site or work with reports of the tests performed, issued by the CONTRACTORS. Completed all supplies and services and once the implementation of each Network Element is performed, or installation on a new site is completed, the CONTRACTORS shall work together to agree a set of Acceptance Tests, Test Data and Acceptance Test Criteria with respect notify the fact to the applicable Developed Software which CONTACTING PARTY, on a weekly basis, in up to 3 (three) working days counted from the reception of such notification, the CONTRACTING PARTY shall authorize the beginning of the performance tests in each Network Element. The tests shall be sufficient performed by the CONTRACTORS and will have as objective to test whether ensure that any equipment, systems or not individual sub-systems will be in compliance with all specifications provided in the Developed Software has ACCEPTANCE PROCEDURES (ATTACHMENT IV). After the facilities performance of the tests and functions specified confirmation of compliance to the equipment and systems to the BASIC ASSUMPTIONS (Attachment I) and of the installations to the specification provided in the ACCEPTANCE PROCEDURES (ATTACHMENT IV), the CONTRACTING PARTY shall activate the Network Element of the new site. Once notified, the CONTRACTING PARTY, will check if the services are in order and performance performed in accordance with the Functional Specificationstipulations of this CONTRACT. In case grave and impeditive pending items are not detected in accordance with the test procedures defined in the ACCEPTANCE PROCEDURE (Attachment IV), such agreement not the CONTRACTING PARTY will issue, in up to be unreasonably withheld 10 (ten) working days, Initial Acceptance Term for each Network Element or delayednew site. Supplier shall perform the Acceptance Tests within the Test Period. Customer shall be given reasonable notice of and be entitled to attend the Acceptance Tests. 5.2 If the Developed Software process the Test Data and achieve the Acceptance Test Criteria then Otherwise, it shall be deemed prepared by the CONTRACTING PARTY, a List of Pending Items which shall be generated according to have passed the Acceptance Testsprovision of the ACCEPTANCE PROCEDURE (Attachment IV), and the CONTRACTORS shall be notified in writing, within the period of 10 (ten) working days, so that they correct the imperfections listed, undertaking to immediately start the repairs and/or supplementations required. Subject to paragraph 5.5In case the CONTRACTING PARTY, if the Developed Software unjustifiably, fails to achieve issue the Initial Acceptance Test Criteria they Term or the List of Pending Items, within the period indicated in the item above, the Initial Acceptance Term of each Network Element shall be deemed to have failed considered as tacitly issued, for all purposes provided for in this contract. After the Acceptance Tests. Customer shall co-operate with Supplier in identifying in what respects (if any) the Developed Software has failed to pass the Acceptance Tests and identify where the Developed Software has failed to conform to the Functional Specification. 5.3 If the Supplier is unable to remedy any failure lapse of the Developed Software so that period of 90 (ninety) days counted from the Developed Software does not pass issuance of the Initial Acceptance Tests or to fix any deficiency Term of each Network Element and once cured all defects and/or irregularities pointed out in the Developed Software to conform with List of Pending Items mentioned above, as well as met all quality requirements in the Functional Specification within a further 20 days, or such longer period as is agreed between the parties in writing ACCEPTANCE PROCEDURE (“Extended Test Period”Attachment IV), then Customer the CONTRACTING PARTY shall be entitled forthwith to reject issue, for each network element, the Developed Software without further liability to Supplier. 5.4 The written statement of Initial Acceptance will be issued when Term, under the relevant Developed Software have passed all the Acceptance Tests as detailed way set forth in the Acceptance Test Criteria within ACCEPTANCE PROCEDURE (Attachment IV), always observing the timescales outlined in therein. 5.5 Save where Customer has rejected period of 10 (ten) calendar days after the Developed Software in accordance with paragraph 5.3, Customer’s Acceptance solution of the Developed Software shall occur at last pending item for the earliest of: (a) the Developed Software passing the Acceptance Tests; (b) the Developed Software being used in a live environment or for commercial use; or (c) the expiration issuance of the Test Period and (where applicable) the Extended Test Periodrespective Term. 5.6 Where Customer rejects the Developed Software in accordance with paragraph 5.3 then the following terms shall apply; (a) Supplier shall be obliged to repay to Customer the Development Fees which Customer has paid to Supplier under the applicable Scope of Work for which the rejected Developed Software relate; (b) each party shall within thirty (30) days of such rejection return (or, at the other party’s option, destroy) all Confidential Information in its possession or under its control and all copies of such information; (c) Customer shall have no right to use the Developed Software or any part of it and shall remove or destroy forthwith all copies of the Developed Software or any part thereof or, at Supplier’s request, return all copies of the same to Supplier; and (d) the applicable Scope of Work for the rejected Developed Software shall terminate.

Acceptance Tests. 5.1 Within a reasonable period following 20.1 The Contractor shall give the parties entering into a Scope Council no less than 30 days' notice of Work, the Parties shall work together to agree a set of Acceptance Tests, Test Data and date on which the Contractor considers that each New Facility will be completed. 20.2 An Acceptance Test Criteria with respect to the applicable Developed Software which shall be sufficient conducted by the Contractor in relation to test whether or not the Developed Software has the facilities and functions specified in and performance each New Facility in accordance with the Functional Specificationprocedures for it developed, such agreement not prepared and approved in accordance with the provisions of Part I of Schedule 6 and the provisions of the Construction and Installation Timetable. 20.3 If a New Facility fails to pass an Acceptance Test, it shall be unreasonably withheld or delayed. Supplier shall perform repeated as soon as reasonably practicable. 20.4 Where the Contractor considers that a New Facility has passed the Acceptance Tests within Test, the Test PeriodContractor shall issue an acceptance certificate prepared by the Contractor in the form set out in Part II of Schedule 6 and the Council shall, if satisfied that the New Facility has so passed the Acceptance Test, countersign it, or if not so satisfied shall state why it is not prepared to do so. Customer Upon such counter-signature the acceptance certificate shall be given reasonable notice of become an Acceptance Certificate and be entitled to attend deemed issued. If in the Acceptance Tests. 5.2 If event of a dispute the Developed Software process Expert subsequently determines that the Test Data and achieve New Facility had passed the Acceptance Test Criteria then and that the Acceptance Certificate had therefor been correctly issued, it shall be deemed to have passed been countersigned on the Acceptance Tests. Subject date it was issued (and the Contractor shall accordingly incur no liability for the delay between the date of issue and the date upon which the Expert so determined). 20.5 Where a countersignature of an acceptance certificate is refused, the acceptance certificate shall, subject to paragraph 5.5Clause 20.4, if be deemed not to have been issued and the Developed Software fails Contractor shall be entitled to achieve re-apply for the countersignature concerned once the work required in order for the Acceptance Test Criteria they to be passed has been carried out. 20.6 The Contractor agrees with the Council that any countersignature of an Acceptance Certificate by or on behalf of the Council shall be deemed to have failed for the Acceptance Tests. Customer shall co-operate sole purpose of establishing purported compliance with Supplier the relevant Target Facility Completion Date, and that it does not in identifying in what respects any way indicate or imply acceptance by the Council that a New Facility complies with the Design and Construction Specification, or is complete, nor (if anyexcept for the purpose mentioned above) does it otherwise indicate or imply acceptance or approval by the Developed Software has failed to pass the Acceptance Tests and identify where the Developed Software has failed to conform to the Functional Specification. 5.3 If the Supplier is unable to remedy any failure Council of the Developed Software so that New Facility, nor does it relieve the Developed Software does not pass the Acceptance Tests or Contractor of any of its obligations under this Agreement.‌ 20.7 Any dispute arising under this Clause may be referred to fix any deficiency in the Developed Software to conform with the Functional Specification within a further 20 days, or such longer period as is agreed between the parties in writing (“Extended Test Period”), then Customer shall be entitled forthwith to reject the Developed Software without further liability to Supplieran Expert under Clause 51. 5.4 The written statement of Acceptance will be issued when the relevant Developed Software have passed all the Acceptance Tests as detailed in the Acceptance Test Criteria within the timescales outlined in therein. 5.5 Save where Customer has rejected the Developed Software in accordance with paragraph 5.3, Customer’s Acceptance of the Developed Software shall occur at the earliest of: (a) the Developed Software passing the Acceptance Tests; (b) the Developed Software being used in a live environment or for commercial use; or (c) the expiration of the Test Period and (where applicable) the Extended Test Period. 5.6 Where Customer rejects the Developed Software in accordance with paragraph 5.3 then the following terms shall apply; (a) Supplier shall be obliged to repay to Customer the Development Fees which Customer has paid to Supplier under the applicable Scope of Work for which the rejected Developed Software relate; (b) each party shall within thirty (30) days of such rejection return (or, at the other party’s option, destroy) all Confidential Information in its possession or under its control and all copies of such information; (c) Customer shall have no right to use the Developed Software or any part of it and shall remove or destroy forthwith all copies of the Developed Software or any part thereof or, at Supplier’s request, return all copies of the same to Supplier; and (d) the applicable Scope of Work for the rejected Developed Software shall terminate.

Acceptance Tests. 5.1 Within a reasonable period following Supplier shall perform or require all appropriate factory acceptance testing (the parties entering into a Scope of Work, the Parties shall work together to agree a set of "Factory Acceptance Tests") necessary to ensure that, Test Data prior to shipment or granting access for download (as applicable), all Software and other Deliverables are free from defects in materials and workmanship and meet the specifications required for use by Ameren and any applicable Ameren Affiliates. Upon receipt of the Software and other Deliverables, Ameren, with all necessary cooperation and assistance from Supplier, will perform software acceptance tests (the "Delivery Acceptance Test Criteria with respect Tests") and such other inspections necessary to the applicable Developed Software which shall be sufficient to test determine whether or not the Developed Software has the facilities and functions specified in and performance or other Deliverables: (a) perform in accordance with the Functional Specificationapplicable Documentation and the Acceptance Criteria; (b) can be used effectively in Ameren's operating business environment; (c) are capable of running without failure; and (d) have been delivered in a condition consistent with this Contract. The Parties will diligently endeavor to cooperate in the Delivery Acceptance Tests and such other inspections so that they are completed in a timely manner, and Ameren will provide written notification of the completion of same which shall serve as the acceptance for purposes of the commencement of the warranty period as set forth in Section 11.1. Ameren's acceptance of the Software and other Deliverables shall in no manner waive Ameren's rights under any representation or warranty set forth in this Contract. If Ameren determines that the Software or other Deliverable has not successfully met the Acceptance Criteria, Ameren will promptly notify Supplier in writing of such agreement determination (the “Failure Notice”) and will describe in reasonable detail its reasons for such determination. For Software, Supplier shall make such necessary corrections and modifications to the Software as will cause the Software to successfully pass the Delivery Acceptance Tests not to be unreasonably withheld or delayedlater than ten (10) business days from the date of the most recent Failure Notice. Supplier shall will notify Ameren in writing that such corrections and modifications have been completed (the “Correction Notice”). Promptly after receipt of the Correction Notice, Ameren, with all necessary cooperation and assistance from Supplier, will re-test the Software using the Delivery Acceptance Tests and perform such other tests (the “Additional Acceptance Tests”) as Ameren deems reasonably necessary. If Ameren determines that the Software fails again to successfully meet the Acceptance Tests Criteria or any criteria included as part of the Additional Acceptance Tests, Ameren will promptly provide Supplier with a Failure Notice, and will have (in addition to its other remedies in equity or at law) the right to reject the Software or to terminate the applicable SOW or this Contract. In the event of the termination of the SOW or rejection of the Software, Supplier shall make a full refund of all amounts paid prior to termination or rejection. Notwithstanding the foregoing, Ameren's acceptance of the Deliverables shall in no manner waive Ameren's rights under any representation or warranty set forth in this Contract or those of any affected Ameren Affiliate. Notwithstanding the foregoing, Ameren’s failure to notify Supplier that the Services or Deliverables meet the Acceptance Criteria within any time period as may be set forth in the Statement of Work shall in no event result in such Service’s or Deliverable’s “deemed acceptance,” or “deemed approval” and Ameren’s acceptance of such Service or Deliverable shall only occur upon Ameren’s written acknowledgment that such Service or Deliverable has met the Acceptance Criteria; provided, however, that in the event Ameren fails to notify Supplier of its approval or rejection of such Service or Deliverable pursuant to this Section within the Test Period. Customer later to occur of: (i) any applicable time period set forth in the Statement of Work, or (ii) three (3) business days after Supplier’s notice to Ameren that such time period is going to, or has expired, then Supplier shall be given reasonable notice of and be entitled to attend an equitable adjustment to its fees and the Acceptance Tests. 5.2 If the Developed Software process the Test Data and achieve the Acceptance Test Criteria then it shall be deemed to have passed the Acceptance Tests. Subject to paragraph 5.5, if the Developed Software fails to achieve the Acceptance Test Criteria they shall be deemed to have failed the Acceptance Tests. Customer shall co-operate with Supplier in identifying in what respects (if any) the Developed Software has failed to pass the Acceptance Tests and identify where the Developed Software has failed to conform Work Schedule to the Functional Specificationextent of any resulting delay. 5.3 If the Supplier is unable to remedy any failure of the Developed Software so that the Developed Software does not pass the Acceptance Tests or to fix any deficiency in the Developed Software to conform with the Functional Specification within a further 20 days, or such longer period as is agreed between the parties in writing (“Extended Test Period”), then Customer shall be entitled forthwith to reject the Developed Software without further liability to Supplier. 5.4 The written statement of Acceptance will be issued when the relevant Developed Software have passed all the Acceptance Tests as detailed in the Acceptance Test Criteria within the timescales outlined in therein. 5.5 Save where Customer has rejected the Developed Software in accordance with paragraph 5.3, Customer’s Acceptance of the Developed Software shall occur at the earliest of: (a) the Developed Software passing the Acceptance Tests; (b) the Developed Software being used in a live environment or for commercial use; or (c) the expiration of the Test Period and (where applicable) the Extended Test Period. 5.6 Where Customer rejects the Developed Software in accordance with paragraph 5.3 then the following terms shall apply; (a) Supplier shall be obliged to repay to Customer the Development Fees which Customer has paid to Supplier under the applicable Scope of Work for which the rejected Developed Software relate; (b) each party shall within thirty (30) days of such rejection return (or, at the other party’s option, destroy) all Confidential Information in its possession or under its control and all copies of such information; (c) Customer shall have no right to use the Developed Software or any part of it and shall remove or destroy forthwith all copies of the Developed Software or any part thereof or, at Supplier’s request, return all copies of the same to Supplier; and (d) the applicable Scope of Work for the rejected Developed Software shall terminate.

Acceptance Tests. 5.1 Within (a) Contractor shall not commence the Acceptance Tests for a reasonable period following Unit or the parties entering into a Scope Facility until such Unit or the Facility has achieved Mechanical Completion. Notwithstanding anything contained in the immediately preceding sentence to the contrary, Contractor shall be permitted to run tests on individual items of Workequipment for purposes of (i) verifying Subcontractor requirements, (ii) satisfying emissions requirements; provided, however, that (A) such equipment can be run without damage to the Facility or any property and without injury to any other person and (B) Contractor shall not, by virtue of performing such tests, be relieved of any of its obligations under this Agreement, including without limitation, the Parties shall work together obligations to agree a set demonstrate that the Facility can be operated in compliance with all Laws. In preparing for the performance of the Acceptance Tests, Test Data Contractor shall reasonably cooperate with Power Purchaser, Operator and Acceptance Test Criteria with respect to the applicable Developed Software which shall be sufficient to test whether or not the Developed Software has the facilities natural gas supplier(s) for purposes of scheduling, safety, coordination of activities and functions specified in and performance in accordance with the Functional Specification, such agreement not to be unreasonably withheld or delayedsimilar matters. Supplier Contractor shall perform the Acceptance Tests within at its sole expense, with all costs thereof payable out of the Test PeriodContract Price, except for costs of Consumables provided by Owner pursuant to Section 4.1 and the operating personnel provided by Owner pursuant to Section 4.6. Customer Contractor shall provide a Notice to Owner at least twenty (20) Days prior to the date that Contractor expects the Work to be given reasonable notice of and be entitled to attend ready for each Acceptance Tests (the "Acceptance TestsTesting Notice"). 5.2 (i) Contractor shall conduct the Performance Tests as described in Exhibit A to verify compliance of each Unit with the Performance Guarantees. If the Developed Software process Performance Tests demonstrate that the Test Data Performance Guarantees have been met, Contractor shall tender such Unit to Owner, subject to the satisfaction of the other requirements for Substantial Completion, and achieve Owner shall pay to Contractor the Acceptance Test Criteria then it shall be deemed to have passed the Acceptance Tests. Subject to paragraph 5.5bonuses, if the Developed Software fails to achieve the Acceptance Test Criteria they shall be deemed to have failed the Acceptance Tests. Customer shall co-operate with Supplier any, set forth in identifying in what respects (if anySection 12.4(c) the Developed Software has failed to pass the Acceptance Tests and identify where the Developed Software has failed to conform to the Functional Specification. 5.3 If the Supplier is unable to remedy any failure of the Developed Software so that the Developed Software does not pass the Acceptance Tests or to fix any deficiency in the Developed Software to conform with the Functional Specification within a further 20 days, or such longer period as is agreed between the parties in writing (“Extended Test Period”), then Customer shall be entitled forthwith to reject the Developed Software without further liability to Supplier. 5.4 The written statement of Acceptance will be issued when the relevant Developed Software have passed all the Acceptance Tests as detailed in the Acceptance Test Criteria within the timescales outlined in therein. 5.5 Save where Customer has rejected the Developed Software in accordance with paragraph 5.3, Customer’s Acceptance of the Developed Software shall occur at the earliest of: (a) the Developed Software passing the Acceptance Tests; (b) the Developed Software being used in a live environment or for commercial use; or (c) the expiration of the Test Period and (where applicable) the Extended Test Period. 5.6 Where Customer rejects the Developed Software in accordance with paragraph 5.3 then the following terms shall apply; (a) Supplier shall be obliged to repay to Customer the Development Fees which Customer has paid to Supplier under the applicable Scope of Work for which the rejected Developed Software relate; (b) each party shall within thirty (30) Days of receiving a written invoice therefor from Contractor. (ii) If the Performance Tests demonstrate that any of the Performance Guarantees have not been met, Contractor shall diligently take corrective action until subsequent Performance Tests demonstrate that all Performance Guarantees have been met or Contractor has tendered the Unit pursuant to clause (iii) below. During this period, Contractor may repeat the Performance Tests as many times as necessary to achieve the Performance Guarantees, subject to the limitations set forth in clause (iv) below. In any event, Contractor shall continue to pay Delay Liquidated Damages, if applicable, in accordance with Section 12.2. (iii) If Contractor (A) causes a Unit to achieve a performance level of at least (1) 96.25% of the Unit Power Output Guarantee on a per Unit basis, (2) 94.25% of the Maximum Unit Power Output Guarantee on a per Unit basis and (3) 104.25% of the Unit Heat Rate Guarantee on a per Unit basis (the "Performance Minimums") and (B) has satisfied the other requirements for Substantial Completion, Contractor may declare Substantial Completion. Commercial Tolerance Bands shall not be applied to the measurements or calculations regarding Performance Minimums. (iv) If (x) Contractor causes a Unit to achieve the Performance Minimums pursuant to clause (iii) above and Substantial Completion has been achieved, and (y) the Date Certain has not yet occurred, Contractor shall have an opportunity to prepare and present to Owner a plan to achieve the Performance Guarantees, which plan shall be consistent with the operational requirements of the Facility and in accordance with the requirements of the Agreement (the "Remedial Plan"). The Remedial Plan shall be prepared in consultation with Owner, shall be presented within 30 days after the achievement of the Substantial Completion and shall detail the corrective measures which Contractor proposes to take to achieve the Performance Guarantees, the manner in which such corrective measures will be implemented, the proposed schedule for the implementation of such rejection return corrective measures, including the required outage duration ("Cure Outage"), and the proposed period of time (the "Plan Period") necessary to effect such corrective measures (which period of time shall not in any event extend beyond the date that is twelve (12) months after the Guaranteed Completion Date, provided, however, in the event that: (A) the time necessary for Contractor to prepare for the implementation of the cure, despite the exercise of due diligence, does not permit the implementation of such cure during a planned outage prior to the expiration of such twelve (12) month period; or (B) the next available planned outage that Owner agrees to permit Contractor to implement the cure occurs after the expiration of such twelve (12) month period; or (C) the outage utilized for implementation of the cure extends beyond the expiration of such twelve (12) month period; then the expiration of such twelve (12) month period shall be extended until the completion of both the implementation of such cure and the required performance testing. Contractor agrees to schedule the Cure Outage during planned outages mutually agreed upon by the Parties and Contractor agrees to take reasonable actions to minimize the duration of any such Cure Outage. If the Unit is out of service on an unscheduled basis, Contractor, subject to Owner's consent, such consent not to be unreasonably withheld, may be given access to the Unit to implement such cure. Owner shall provide Contractor the opportunity to make the necessary corrections and to reperform such Performance Guarantee Tests, consistent with the operational requirements of the Facility and the planned outage schedule. In the event that the Cure Outage must be scheduled after the expiration of the original twelve (12) month period described above, Owner agrees to pay Contractor the unpaid balance of the Contractor Price upon the expiration of such period and receipt of an irrevovable unconditional letter of credit in such amount as Owner is entitled to retain under the terms of the Agreement. Contractor shall proceed with due diligence to implement the Remedial Plan and use reasonable efforts to achieve the Performance Guarantees. Contractor shall review any material revisions to the Remedial Plan with the Owner. If any revisions to the Remedial Plan require an extension of the outage beyond the expiration of the Cure Outage, Contractor shall pay Owner Delay Liquidated Damages at the other party’s option, destroy) all Confidential Information rates and on the terms set forth in its possession or under its control and all copies Section 12.2 for the period of such information;extension. If Contractor elects not to attempt a cure, Contractor shall so advise Owner and shall immediately pay the applicable Performance Liquidated Damages in accordance with Section 12 4(c) hereof. At the end of the Plan Period, Contractor shall pay the Performance Liquidated Damages calculated in accordance with Section 12.4(c) hereof. (v) Notwithstanding the foregoing, if Contractor has not achieved the Performance Guarantees by the Date Certain, Contractor shall immediately pay to Owner the Performance Liquidated Damages calculated in accordance with Section 12.4(c) based upon the most recent Performance Test results, provided that nothing contained herein shall limit Contractor's obligation hereunder to achieve not less than the Performance Minimums. (c) Customer Liquidated damages and bonuses shall have no right be payable to use the Developed Software or any part of it and shall remove or destroy forthwith all copies extent that the results of the Developed Software or any part thereof orPerformance Tests differ, at Supplier’s requestby a magnitude greater than the Commercial Tolerance Band, return all copies from the Performance Guarantees set forth in Exhibit A. Solely for the purpose of computing liquidated damages and bonuses under this Section 12.4(c), the applicable Commercial Tolerance Band shall be applied to the Unit Power Output (as adjusted to the Base Conditions for the Unit Power Output Test) and the Unit Power Output (as adjusted to the Base Conditions for the Maximum Unit Power Output Test) and the applicable Commercial Tolerance Band shall be applied to the adjusted Unit Heat Rate (as adjusted to the Base Conditions for the Unit Heat Rate Test). The liquidated damages and bonuses applicable to the results of the same Performance Tests regarding compliance of the Facility with the Performance Guarantees are as follows, and are subject to Supplier; and (d) the applicable Scope of Work for the rejected Developed Software shall terminate.Sections 13.1 and 13.2: