Common use of Nature of Liquidated Damages Clause in Contracts

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 AND AGREE THAT (A) IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY OWNER BUYER AS A RESULT OF THE SELLER’S FAILURE TO ACHIEVE COMMERCIAL OPERATION ON OR BEFORE THE GUARANTEED PERFORMANCE, COMMERCIAL OPERATION DATE OR TO ACHIEVE (A) A CONTRACT CAPACITY EQUAL TO AT LEAST NINETY- FIVE PERCENT (95%) OF THE GUARANTEED XXXX AVAILABILITY, EXPECTED CAPACITY AND/OR THE GUARANTEED XXXX XX EFFICIENCY; (B) OWNER WOULD 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 ANY THE FAILURE OF O&M CONTRACTOR SELLER TO ACHIEVE THE GUARANTEED PERFORMANCEMEET SUCH OBLIGATIONS, THE GUARANTEED XXXX AVAILABILITY, OR THE GUARANTEED XXXX XX EFFICIENCY; (CII) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM; , (DIII) ANY SUMS THAT WOULD BE PAYABLE UNDER SECTION 10.2(B), 3.7 OR SECTION 10.3(B), AND SECTION 10.4(B) 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, (EIV) EACH PAYMENT REPRESENTS A REASONABLE ESTIMATE OF FAIR COMPENSATION FOR THE DAMAGES THAT MAY REASONABLY BE ANTICIPATED FROM SUCH FAILURE; AND , (FV) EACH OF O&M CONTRACTOR AND OWNER PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO CLAIM TO ANY COURT OR ARBITRAL TRIBUNAL OR SEEK 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 ACKNOWLEDGE AND AGREE THAT (A) IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY OWNER BUYER AS A RESULT OF THE SELLER’S FAILURE TO ACHIEVE COMMERCIAL OPERATION ON OR BEFORE THE GUARANTEED PERFORMANCE, COMMERCIAL OPERATION DATE OR TO ACHIEVE (A) A CONTRACT CAPACITY EQUAL TO AT LEAST NINETY- FIVE PERCENT (95%) OF THE GUARANTEED XXXX AVAILABILITY, EXPECTED CAPACITY AND/OR THE GUARANTEED XXXX XX EFFICIENCY; (B) OWNER WOULD 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 ANY THE FAILURE OF O&M CONTRACTOR SELLER TO ACHIEVE THE GUARANTEED PERFORMANCEMEET SUCH OBLIGATIONS, THE GUARANTEED XXXX AVAILABILITY, OR THE GUARANTEED XXXX XX EFFICIENCY; (CII) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM; , (DIII) ANY SUMS THAT WOULD BE PAYABLE UNDER SECTION 10.2(B), 3.7 OR SECTION 10.3(B), AND SECTION 10.4(B) 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, (EIV) EACH PAYMENT REPRESENTS A REASONABLE ESTIMATE OF FAIR COMPENSATION FOR THE DAMAGES THAT MAY REASONABLY BE ANTICIPATED FROM SUCH FAILURE; AND , (FV) EACH OF O&M CONTRACTOR AND OWNER PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO CLAIM TO ANY COURT OR ARBITRAL TRIBUNAL OR SEEK 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 Formatted: No underline 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) 20 NTD: Amount to be provided by Buyer. 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 ACKNOWLEDGE AND AGREE THAT (A) IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY OWNER BUYER AS A RESULT OF THE SELLER’S FAILURE TO ACHIEVE COMMERCIAL OPERATION ON OR BEFORE THE GUARANTEED PERFORMANCE, COMMERCIAL OPERATION DATE OR TO ACHIEVE (A) A CONTRACT CAPACITY EQUAL TO AT LEAST NINETY- 17 NTD: Amount to be provided by Buyer. 18 NTD: Amount to be provided by Buyer. FIVE PERCENT (95%) OF THE GUARANTEED XXXX AVAILABILITY, EXPECTED CAPACITY AND/OR THE GUARANTEED XXXX XX EFFICIENCY; (B) OWNER WOULD 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 ANY THE FAILURE OF O&M CONTRACTOR SELLER TO ACHIEVE THE GUARANTEED PERFORMANCEMEET SUCH OBLIGATIONS, THE GUARANTEED XXXX AVAILABILITY, OR THE GUARANTEED XXXX XX EFFICIENCY; (CII) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM; , (DIII) ANY SUMS THAT WOULD BE PAYABLE UNDER SECTION 10.2(B), 3.7 OR SECTION 10.3(B), AND SECTION 10.4(B) 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, (EIV) EACH PAYMENT REPRESENTS A REASONABLE ESTIMATE OF FAIR COMPENSATION FOR THE DAMAGES THAT MAY REASONABLY BE ANTICIPATED FROM SUCH FAILURE; AND , (FV) EACH OF O&M CONTRACTOR AND OWNER PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO CLAIM TO ANY COURT OR ARBITRAL TRIBUNAL OR SEEK 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 ACKNOWLEDGE AND AGREE THAT (A) IT IS DIFFICULT OR IMPOSSIBLE TO DETERMINE WITH PRECISION THE AMOUNT OF DAMAGES THAT WOULD OR MIGHT BE INCURRED BY OWNER BUYER AS A RESULT OF THE SELLER’S FAILURE TO ACHIEVE COMMERCIAL OPERATION ON OR BEFORE THE GUARANTEED PERFORMANCE, COMMERCIAL OPERATION DATE OR TO ACHIEVE (A) A CONTRACT CAPACITY EQUAL TO AT LEAST NINETY- FIVE PERCENT (95%) OF THE GUARANTEED XXXX AVAILABILITY, EXPECTED CAPACITY AND/OR THE GUARANTEED XXXX XX EFFICIENCY; (B) OWNER WOULD 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 ANY THE FAILURE OF O&M CONTRACTOR SELLER TO ACHIEVE THE GUARANTEED PERFORMANCEMEET SUCH OBLIGATIONS, THE GUARANTEED XXXX AVAILABILITY, OR THE GUARANTEED XXXX XX EFFICIENCY; (CII) IT WOULD BE IMPRACTICABLE OR EXTREMELY DIFFICULT TO FIX THE ACTUAL DAMAGES RESULTING THEREFROM; , (DIII) ANY SUMS THAT WOULD BE PAYABLE UNDER SECTION 10.2(B), 3.7 OR SECTION 10.3(B), AND SECTION 10.4(B) 3.9 ARE 17 NTD: Amount to be provided by Xxxxx. 18 NTD: Amount to be provided by Xxxxx. 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, (EIV) EACH PAYMENT REPRESENTS A REASONABLE ESTIMATE OF FAIR COMPENSATION FOR THE DAMAGES THAT MAY REASONABLY BE ANTICIPATED FROM SUCH FAILURE; AND , (FV) EACH OF O&M CONTRACTOR AND OWNER PARTY HEREBY IRREVOCABLY WAIVES ANY RIGHT TO CLAIM TO ANY COURT OR ARBITRAL TRIBUNAL OR SEEK 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.