Nature of Liquidated Damages. The parties expressly acknowledge and agree that any amount payable under this Article is not a penalty and represents a reasonable estimate of fair compensation for the damage incurred due to failure to provide the supplies within the applicable time limits set out in this FWC.
Nature of Liquidated Damages. The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Xxxxx as a result of Seller’s failure to achieve Commercial Operation on or before the Guaranteed Commercial Operation Date or to achieve (A) a Contract Capacity equal to at least ninety- 17 NTD: Amount to be provided by Xxxxx. 18 NTD: Amount to be provided by Xxxxx. five percent (95%) of the Expected Capacity and/or (B) a Storage Contract Capacity equal to at least ninety-five percent (95%) of the Storage Expected Capacity. It is understood and agreed by the Parties that (i) Buyer shall be damaged by the failure of Seller to meet such obligations, (ii) it would be impracticable or extremely difficult to fix the actual damages resulting therefrom, (iii) any sums that would be payable under Section 3.7 or Section 3.9 are in the nature of liquidated damages, and not a penalty, and are fair and reasonable, and shall be paid regardless of the amount of damages that Buyer actually sustains, (iv) each payment represents a reasonable estimate of fair compensation for the damages that may reasonably be anticipated from such failure, (v) each Party hereby waives any right to claim to any court or arbitral tribunal the adjustment of any such sums, and (vi) without limiting Section 15.2, any sums that would be creditable or payable under Section 3.7 or Section 3.9 are Buyer’s exclusive damages arising out of a delay in the commercial operation date or a reduction of contract capacity or storage contract capacity, as applicable, provided, that (i) Seller actually credits or pays Buyer any such amount and (ii) any such credit or payment shall not limit Buyer’s rights or remedies for any breach, default or Event of Default of Seller under this Agreement; provided, however, that Seller and Buyer agree that, if the condition in Part (i) of the foregoing proviso is satisfied, neither (x) Seller’s failure to achieve Commercial Operation on or before the Guaranteed Commercial Operation Date nor (y) Seller’s failure to achieve (1) a Contract Capacity equal to at least ninety-five percent (95%) of the Expected Capacity or (2) a Storage Contract Capacity equal to at least ninety-five percent (95%) of the Storage Expected Capacity shall constitute, in and of itself, such a breach, default or Event of Default.
Nature of Liquidated Damages. THE PARTIES AGREE THAT (A) IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY OWNER AS A RESULT OF THE FAILURE TO ACHIEVE THE GUARANTEED PERFORMANCE, THE GUARANTEED XXXX AVAILABILITY, OR THE GUARANTEED XXXX XX EFFICIENCY; (B) OWNER WOULD BE DAMAGED BY ANY FAILURE OF O&M CONTRACTOR TO ACHIEVE THE GUARANTEED PERFORMANCE, THE GUARANTEED XXXX AVAILABILITY, OR THE GUARANTEED XXXX XX EFFICIENCY; (C) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM; (D) ANY SUMS THAT WOULD BE PAYABLE UNDER SECTION 10.2(B), SECTION 10.3(B), AND SECTION 10.4(B) ARE IN THE NATURE OF LIQUIDATED DAMAGES, AND NOT A PENALTY, AND ARE FAIR AND REASONABLE; (E) EACH PAYMENT REPRESENTS A REASONABLE ESTIMATE OF FAIR COMPENSATION FOR THE DAMAGES THAT MAY REASONABLY BE ANTICIPATED FROM SUCH FAILURE; AND (F) EACH OF O&M CONTRACTOR AND OWNER HEREBY IRREVOCABLY WAIVES ANY RIGHT TO CLAIM TO ANY COURT OR ARBITRAL TRIBUNAL OR SEEK THE ADJUSTMENT OF ANY SUCH SUMS.
Nature of Liquidated Damages. The Parties acknowledge that the Buyer shall suffer damages that will be difficult to ascertain if the Seller fails to comply with the Scheduled Major Component Shipment Dates or if Commercial Operation is delayed. The Parties agree that the liquidated damages specified in this Article 17 are reasonable compensation for such failures and delays.
Nature of Liquidated Damages. The Parties acknowledge that the Buyer shall suffer damages that will be difficult to ascertain if the Seller fails to achieve the Power Curve Guarantee. The Parties agree that the liquidated damages specified in this Article 18 are reasonable compensation to the Buyer for such failure.
Nature of Liquidated Damages. THE PARTIES ACKNOWLEDGE AND AGREE THAT IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY BUYER AS A RESULT OF SELLER’S FAILURE TO ACHIEVE COMMERCIAL OPERATION ON OR BEFORE THE GUARANTEED COMMERCIAL OPERATION DATE OR TO ACHIEVE A CONTRACT CAPACITY EQUAL TO AT LEAST NINETY-FIVE PERCENT (95%) OF THE EXPECTED CAPACITY. IT IS UNDERSTOOD AND AGREED BY THE PARTIES THAT (A) BUYER SHALL BE DAMAGED BY THE FAILURE OF SELLER TO MEET SUCH OBLIGATIONS,
Nature of Liquidated Damages. The Parties acknowledge and agree that it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Xxxxx as a result of Seller’s failure to achieve Commercial Operation on or before the Guaranteed Commercial Operation Date or to achieve a Contract Capacity equal to at least ninety-five percent (95%) of the Expected Capacity. It is understood and agreed by the Parties that (A) Buyer shall be damaged by the failure of Seller to meet such obligations,
Nature of Liquidated Damages. These sums are agreed upon as reasonable liquidated damages, developed in accordance with Arizona law, and are not penalties.
Nature of Liquidated Damages. The Parties acknowledge and agree that because of the unique nature of the Project and the unavailability of adequate substitutes, it is difficult or impossible to determine with precision the amount of damages that would or might be incurred by Xxxxx as a result of Seller’s failure to achieve Closing by the Target Closing Date or the Guaranteed Closing Date. It is understood and agreed by the Parties that (a) Buyer shall be disadvantaged by failure of Seller to meet such obligations, (b) it would be impracticable or extremely difficult to quantify the amount of time lost to Buyer’s disadvantage resulting therefrom, (c) any sums which would be payable under Section 10.2 or Section 11.1.3 are in the nature of liquidated damages, are fair and reasonable and do not constitute penalties, and (d) such payments represent a reasonable estimate of damages, and shall, without duplication, be the sole and exclusive remedy of Buyer with respect to any such failure by Seller.
Nature of Liquidated Damages. Each party recognizes that, if it fails to perform its obligations hereunder, then the other party shall be entitled to compensation for the detriment caused thereby. However, the parties agree that it is extremely difficult and impractical to ascertain the extent of the detriment and, to avoid such difficulties, the parties agree that if either party fails to perform its obligations hereunder and this Agreement is terminated by reason thereof, the party not in default may retain the Initial Deposit (plus all interest and dividends earned thereon) and shall be entitled to the “break up” fees enumerated above as liquidated damages for default. All parties agree that such amount stated as liquidated damages shall be in lieu of any other relief to which the party not in default might otherwise be entitled to by virtue of this Agreement or by operation of law.
