Common use of Shortfall Fee Clause in Contracts

Shortfall Fee. For any calendar quarter, should Customer fail to tender an aggregate volume of Customer Product to Operator at the Terminals equal to the MTVC for such calendar quarter and Operator is ready, willing and able to provide the Minimum Throughput Capacity, then Customer shall pay to Operator a fee in accordance with the terms of this Agreement as a result of such shortfall (such fee, a “Shortfall Fee”) calculated as follows: i. The sum of: a) the amount of the MTVC for which Operator was ready, willing and able to provide the Minimum Throughput Capacity, and for the avoidance of doubt, such amount shall not include any volumes for which Operator was not ready, willing and able to provide the Minimum Throughput Capacity for any reason not resulting from actions or inactions by Customer or its affiliates, including but not limited to the following: if Operator is required to reduce the Minimum Throughput Capacity to comply with any applicable law, rule or regulation, if Operator is unable to provide the Minimum Throughput Capacity due to a Force Majeure Event (as defined herein), or if Operator’s repair and maintenance schedule prevents Customer from using the Minimum Throughput Capacity or any portion thereof, minus b) the aggregate volumes, stated in gallons, of Customer Product actually tendered into the Terminals by Customer during such calendar quarter, multiplied by ii. the Throughput Rate.