Common use of PERFORMANCE GUIDELINES Clause in Contracts

PERFORMANCE GUIDELINES. While this Agreement is in effect, FDMS shall at all times provide the services in accordance with the performance guidelines set forth in Exhibit J (the "Performance Guidelines"). During each calendar month, FDMS agrees to provide Customer with a monthly report setting forth the Performance Guidelines and FDMS' performance during the just concluded calendar month relative to the Performance Guidelines. Upon request, FDMS will review the Performance Guidelines with Customer monthly. If FDMS fails to meet the same Performance Guideline in any three (3) consecutive months, FDMS will credit or pay to Customer one percent (1%) of the fees paid by Customer to FDMS under this Agreement during such third failed month as liquidated damages. If FDMS fails to meet the same two (2) Performance Guidelines in any three (3) consecutive months, FDMS will credit or pay to Customer two percent (2%) of the fees paid by Customer to FDMS under this Agreement during such third failed month as liquidated damages. If FDMS fails to meet the same three (3) Performance Guidelines in any three (3) consecutive months, FDMS will credit or pay to Customer three percent (3%) of the fees paid by Customer to FDMS under this Agreement during such third failed month as liquidated damages. If FDMS fails to meet any one of Performance Guidelines numbers 1 (Authorization System Availability), 4 (Postings, Monetary/Non-Monetary), 5 (Settlement Screens) or 7 (Daily ACH File Transmissions), as set forth in Exhibit J, in any four (4) consecutive months, Customer, at its election, may terminate this Agreement without penalty; provided, that this termination option is exercised within sixty (60) days following the end of such fourth month and provided that such termination shall become effective on a date specified by Customer, which date shall not be later than nine (9) months after Customer's delivery to FDMS of a written notice of its intention to so terminate this Agreement. FDMS' failure to meet a Performance Guideline due to any cause beyond its control shall not be considered to be a failure for which FDMS shall be responsible under this Agreement.