Common use of EXCUSING CAUSES Clause in Contracts

EXCUSING CAUSES. 20.1 If an Excusing Cause interferes adversely with, or causes or contributes to a failure of, the performance of the Services by the Operator and provided that the effect of such Excusing Cause is claimed within ten (10) Working Days of the date on which the Operator became aware (or ought reasonably to have become so aware) of the occurrence of the Excusing Cause, then to the extent such failure arises as a result of such Excusing Cause: 20.1.1 such failure by the Operator to perform or interference or occurrence, and any poor performance of, any affected Services shall not constitute a breach of the provisions of this Agreement by the Operator; 20.1.2 such failure by the Operator to perform or interference or occurrence shall be taken account of in measuring the performance of any affected Service in accordance with the Service Requirements, which shall be operated as though performing the relevant Service had been performed free from such adverse interference, so that the Operator shall be relieved from providing the Services pursuant to Clause 4. 20.2 For the purpose of this Clause 20, an Excusing Cause means: 20.2.1 any breach of any express provision of this Agreement by the Council (unless, and to the extent, caused or contributed to by the Operator); 20.2.2 any deliberate act or omission of the Council or any failure by the Council (having regard always to the interactive nature of the activities of the Council and the Operator) to take reasonable steps to carry out its activities in a manner which minimises undue interference with the Operator's performance of the Services, save where (and to the extent): (a) caused or contributed to by the Operator or any Staff; (b) the Council is acting in accordance with a recommendation or instruction of the Operator or any Staff; (c) any such act or omission giving rise to such failure was within the contemplation of the parties or was otherwise provided for in this Agreement; or (d) the consequences of any such deliberate act or omission or other acts or omissions giving rise to such failure would have been prevented by the proper performance of the Operator's obligations under this Agreement.

EXCUSING CAUSES. 20.1 If an 60.1 This Clause 60 (Excusing Cause interferes adversely with, or causes or contributes to a failure of, Causes) and Clause 61 (Force Majeure) set out: (a) the performance of the Services by the Operator and provided that the effect of such Excusing Cause is claimed within ten (10) Working Days of the date only bases on which the Operator became aware Service Provider shall be excused from liability for a failure to perform (or ought reasonably delay in performing) its obligations under this Agreement, and the conditions to have become so awarewhich that excuse is subject; and (b) the Service Provider’s only remedies in respect of ▇▇▇▇▇▇’▇ failure to perform the ▇▇▇▇▇▇ Responsibilities (but without prejudice to the Service Provider’s right to terminate this Agreement under Clause 51 (Termination of the occurrence Entire Agreement for Cause)). Any reference to Service Provider in this Clause 60 shall be read as including a reference to any member of the Excusing CauseService Provider Group. 60.2 Subject to Clause 60.5, then the Service Provider shall not be liable for any failure to perform (or any delay in performing) any of its obligations under this Agreement (including the Service Levels) if and to the extent such that the Service Provider can reasonably demonstrate that the failure arises as a result of such Excusing Causeor delay results from: 20.1.1 such (a) a failure or delay by ▇▇▇▇▇▇, ▇▇▇▇▇▇ Companies, or Other Service Providers (other than those Other Service Providers whose contract with ▇▇▇▇▇▇ or whose related activities are not being administered or managed by the Operator Service Provider or any of its Affiliates, to perform the extent the failure or interference delay by the applicable Other Service Provider results from the Service Provider’s improper administration, improper management, or occurrence, and any poor performance of, any affected Services shall not constitute a other breach of the provisions of this Agreement by the Operator;Service Provider) in performing any ▇▇▇▇▇▇ Responsibility; or 20.1.2 such failure by (b) the Operator to perform or interference or occurrence shall be taken account of in measuring the performance of any affected Service Provider acting in accordance with an express instruction by ▇▇▇▇▇▇, provided that: (i) the instruction was issued by an employee or other representative of ▇▇▇▇▇▇ with at least apparent authority; and (ii) the instruction was not manifestly issued in error (each, an “Excusing Cause”). 60.3 The provision by Service Provider or any other member of the Service RequirementsProvider Group of other services to ▇▇▇▇▇▇ other than the Services, which where the provision of such other services adversely affects the Services, shall be operated as though performing the relevant Service had been performed free from such adverse interference, so that the Operator shall be relieved from providing the Services pursuant not amount to Clause 4. 20.2 For the purpose of this Clause 20, an Excusing Cause means: 20.2.1 any Cause, provided that it is neither (a) a breach of the applicable agreement between ▇▇▇▇▇▇ or any express provision member of this Agreement by the Council (unless▇▇▇▇▇▇ Group, on one hand, and to the extent, caused Service Provider or contributed to by the Operator); 20.2.2 any deliberate act or omission member of the Council Service Provider Group, on the other hand, for which ▇▇▇▇▇▇ or any failure by the Council (having regard always to the interactive nature member of the activities ▇▇▇▇▇▇ Group is liable nor (b) an event for which ▇▇▇▇▇▇ or the applicable member of the Council and the Operator) to take reasonable steps to carry out its activities ▇▇▇▇▇▇ Group is responsible in a manner which minimises undue interference with which, under the Operator's performance terms of the Servicesapplicable agreement, save where (and results in the Service Provider or the applicable member of the Service Provider Group being relieved of its obligation to the extent):perform its obligations under such agreement. 60.4 The Service Provider shall: (a) caused notify ▇▇▇▇▇▇ in writing, and in a form that complies with the requirements of Clause 60.4(b) (an “Excusing Cause Notice”), as soon as practicable after becoming aware of an Excusing Cause which has led, is leading or contributed is likely to by lead to a failure or delay in the Operator or any StaffService Provider performing its obligations under this Agreement; (b) provide ▇▇▇▇▇▇ with full details of, in each case as soon as is practicable under the Council is acting circumstances: (i) the precise nature of the Excusing Cause and the actual or potential delay or failure; (ii) the specific obligations that are impacted by the Excusing Cause and how the Excusing Cause prevents or delays the performance of those obligations; (iii) if the Service Provider seeks relief from Service Levels, the specific Service Levels in respect of which the Service Provider seeks relief and the reasons why the Excusing Cause impacts the Service Provider’s ability to meet those Service Levels; (iv) the specific actions the Service Provider requires ▇▇▇▇▇▇ to take in order for the Service Provider to resume performance of the Services in accordance with a recommendation or instruction this Agreement; and (v) the specific actions the Service Provider will to take in order for the Service Provider to mitigate the effect of the Operator or any StaffExcusing Cause and resume performance of the Services in accordance with this Agreement; (c) use all reasonable endeavors to continue to perform the affected obligations in accordance with this Agreement notwithstanding the occurrence of any such act or omission giving rise Excusing Cause; and (d) comply with its obligations under this Agreement that relate to such failure was within the contemplation management and resolution of the parties or was otherwise provided for in this Agreementeffects of the Excusing Cause (including, without limitation, its obligations under Clauses 24 (Security) to Clause 27 (Virus and Harmful Code Protection)). 60.5 If the Service Provider (a) fails to comply with Clause 60.4; or (db) submits an Excusing Cause Notice that does not comply with any of the consequences requirements of Clause 60.4(b), the Service Provider shall not be excused from liability under Clause 60.2 to the extent that compliance with Clause 60.4 would have mitigated, or would have enabled ▇▇▇▇▇▇ to mitigate, the effects of the Excusing Cause. 60.6 Where an Excusing Cause contributed to a failure by the Service Provider to meet a Milestone, the Milestone Date for that Milestone (and ▇▇▇▇▇▇’▇ obligation to make payment in respect of any Payment Milestone corresponding to that Milestone) shall be automatically extended (without the need for Agreement Change) by a period of time equal to the delay caused by the Excusing Cause (which the Parties acknowledge may not necessarily be exactly the same as the period for which the Excusing Cause itself persisted). 60.7 If an Agreement Change has been made in respect of an Excusing Cause in accordance with Schedule 9 (Change), which may include an adjustment to the Charges, the Service Provider is not entitled to any other relief in respect of that Excusing Cause except as set out in the relevant agreed Change Notice. 60.8 Where the Parties cannot agree an Agreement Change to give effect to the adjustment to the Charges, either Party shall be entitled to initiate the Fast-Track Dispute Resolution Procedure, subject to Clause 60.12 and Clause 60.13. 60.9 Where there is a dispute under Clause 60.11, the Independent Expert shall be called upon to determine, and shall provide a formal report (the “Expert Report”) specifying: (a) whether there is an entitlement to a change to the Charges due to an Excusing Cause; and/or (b) how the Charges should be adjusted based on the Excusing Cause. 60.10 The Independent Expert shall determine the matters set out in Clause 60.9 by confirming all the relevant circumstances, including having regard to the following factors: (a) whether there has in fact been an Excusing Cause within the meaning of Clause 60; and (b) if there has been an Excusing Cause, the consequence of all the Excusing Causes in the relevant month is that the Service Provider had to expend more than 160 hours of Service Provider Personnel time in additional effort to perform the Services. 60.11 If the Independent Expert determines these criteria are met, then the Service Provider shall be entitled to adjust the Charges. If an Excusing Cause results directly in any delay in the Service Provider achieving a Milestone, and that delay results directly in the Service Provider incurring additional costs which it is unable to mitigate despite having used reasonable efforts to do so, the Service Provider shall be entitled to recover those costs from Molina. Where the Service Provider has incurred costs beyond the Delivery Credit amounts provided for above, nothing in this Clause 60.11 shall be taken as preventing the Service Provider in recovering any such deliberate act or omission or other acts or omissions amounts by way of damages in accordance with Clause 60.14. 60.12 A claim by a Party (“Claiming Party”) under this Agreement for damages shall not be defeated because of the fault of the Claiming Party suffering the damage, but the damages recoverable by the Claiming Party in respect of that claim shall be reduced to the extent that the Claiming Party is responsible for the situation giving rise to such failure would have been prevented by the proper performance claim. 60.13 The acts, delays, failures or omissions of Molina referred to in this Clause 60 shall be deemed to include the acts, delays, failures or omissions of members of the Operator's obligations Molina Group. 60.14 Any sums recoverable as an Excusing Cause under the provisions of this Agreement.Clause 60 (Excusing Causes) shall be counted towards the liability cap under Clause 58.4(c) (

EXCUSING CAUSES. 20.1 24.1 If an Excusing Cause interferes adversely causes a material adverse interference with, or causes or contributes to a material failure of, the performance of the Services by the Operator and provided that the effect of such Excusing Cause is claimed and the likely effects of it are notified to BT by the Contractor in writing within ten (10) Working Days [**]of the date on which the Operator Contractor or any Contractor Party became aware (or ought reasonably to have become so aware) of the occurrence of the Excusing Cause, then (subject to subclauses 9.10, 24.3, and 24.5) to the extent such failure or interference arises as a result of such Excusing Cause: 20.1.1 24.1.1 such failure by the Operator Contractor to perform or interference or occurrenceperform, and any poor performance of, of any affected Services Service shall not constitute a breach of the provisions of this Agreement by the Operator;Contractor; and 20.1.2 24.1.2 such failure by the Operator to perform or interference or occurrence shall be taken account of in measuring the performance of any affected Service in accordance with the Clause 8 (Service RequirementsLevel Specifications) and Clause 21 (Monitoring of Performance), which shall be operated as though performing the relevant Service had been performed free from such adverse interference, so that, provided that the Operator Contractor can show to the reasonable satisfaction of BT that but for the occurrence of the Excusing Cause it would have provided the affected Services in accordance with this Agreement, the Contractor shall, subject to subclause 44.10.4, be entitled to payment under this Agreement as if the Excusing Cause had not occurred and to payment of any unavoidable additional direct costs and expenses to the extent not recovered from the Charges on the same basis as is set out in subclauses 9.15 to 9.18. The rights and remedies of the Contractor under this subclause 24.1 shall be relieved from providing the Services pursuant to Clause 4only rights and remedies of the Contractor in respect of the occurrence of an Excusing Cause and the Contractor shall not have any other right or remedy in respect of the occurrence of that Excusing Cause. 20.2 24.2 For the purpose of this Clause 20subclause 24.1, an Excusing Cause means: 20.2.1 24.2.1 any breach by BT of any of BT’s express provision of obligations under this Agreement by the Council (unless, and to the extent, caused or contributed to by the OperatorContractor or any Contractor Party); 20.2.2 24.2.2 any deliberate act or omission of BT, the Council Authority, any Authority Service Recipient or Authority Party or any failure by BT, the Council Authority, any Authority Service Recipient or any Authority Party (having regard always to the interactive nature of the activities of BT, the Council Authority, each Authority Service Recipient and of the OperatorContractor) to take reasonable steps to carry out its activities in a manner which minimises undue interference with the Operator's Contractor’s performance of the Services, save where where: 24.2.2.1 (and to the extent): (a) caused or contributed to by the Operator Contractor or any Staff;Contractor Party; or (b) 24.2.2.2 BT, the Council Authority or any Authority Service Recipient or any Authority Party is acting in accordance with a recommendation or instruction of the Operator Contractor or any Staff;Contractor Party; or (c) 24.2.2.3 any such act or omission giving rise to such failure was within the contemplation of the parties provided for in this Agreement or was otherwise provided for in necessary to ensure compliance by BT with its obligations under this Agreement; or 24.2.2.4 (dand to the extent that) the consequences of any such deliberate act or omission or other acts or omissions giving rise to such failure would have been prevented by the proper performance of the Operator's Contractor’s obligations under this Agreement; or 24.2.3 the implementation of any action taken by BT, either on its own or at the request of the Authority or any suspension of the Contractor’s obligation to deliver any or any part of the Services or the compliance by the Contractor with instructions given by BT under subclauses 20.2, 20.3 and/or 20.4 in each case in the circumstances referred to in subclauses 20.1.2 or 20.1.6; 24.2.4 any act or omission of any BT Subcontractor other than the Contractor or any Affiliate of the Contractor. 24.3 The Contractor shall not be relieved of liability for any breach by it of any of its obligations under this Agreement which has entitled BT to exercise its rights under any or all of subclauses 20.2, 20.3 or 20.4, nor shall the Contractor be entitled to payment under this Agreement in the circumstances set out in subclause 20.5. 24.4 [not used] 24.5 BT and the Contractor shall take all reasonable steps to mitigate the consequences of an Excusing Cause on the Contractor’s ability to perform its obligations under this Agreement. To the extent that the Contractor does not take such steps, the Contractor shall not be entitled to, and shall not receive, the relief specified in subclause 24.1 (Excusing Causes).