Not a Penalty. The Parties intend that no part of this Article Five or any amount due thereunder represents a penalty to the Defaulting Party or Potentially Defaulting Party.
Not a Penalty. The Parties acknowledge that (a) the Non-Defaulting Party shall be damaged by the Defaulting Party, (b) it would be impracticable or extremely difficult to determine the actual damages resulting therefrom, (c) the remedies specified herein are fair and reasonable and do not constitute a penalty and (d) the remedies specified in Section 9.4 shall be the Non-Defaulting Party’s sole and exclusive remedy in the Event of Default.
Not a Penalty. The parties have both been represented by, or had the opportunity to consult with, legal counsel in the negotiation of this Agreement and have bargained for and agreed to the foregoing liquidated damages provision, giving consideration to the fact that Employer will incur administrative and recruiting costs in obtaining a replacement for Employee, that Employer will lose the benefit of its investment in the Employee, and that Employer may face potentially increased compensation costs if Employee terminates this Agreement for convenience, all of which amounts are extremely difficult to determine with certainty. The parties further agree that the payment of such liquidated damages by Employee is Employer’s sole remedy and the acceptance thereof by Employer shall constitute adequate and reasonable compensation to Employer for any and all damages and injury suffered by it because of such termination by Employee. The liquidated damages are not, and shall not be construed to be, a penalty.
Not a Penalty. The Parties intend that no part of this Article Five or any amount due thereunder represents a penalty to the Defaulting Party or Potentially Defaulting Party. The Parties acknowledge that (a) the Non-Defaulting Party shall be damaged by the Defaulting Party, (b) it would be impracticable or extremely difficult to determine the actual damages resulting therefrom, (c) the remedies specified herein are fair and reasonable and do not constitute a penalty and (d) the remedies specified in Section 9.4 shall be the Non-Defaulting Party’s sole and exclusive remedy in the Event of Default.
Not a Penalty. Damages do not constitute a penalty and the Parties, having negotiated in good faith for such specific Liquidated Damages and having agreed that the amount of such Liquidated Damages is reasonable in light of the anticipated harm caused by the failure of Contractor to achieve the same and the difficulties of proof of loss and inconvenience or non-feasibility of obtaining any adequate remedy, will be estopped from contesting the validity or enforceability of such Liquidated Damages. In the event any Contractor, Guarantor or anyone on their behalf successfully challenges the enforceability of the per Day amount of any Delay Liquidated Damages or the per unit rate of any Performance Liquidated Damages, Contractor specifically agrees to pay Owner all actual damages incurred by Owner in connection with such breach, including any and all Consequential Damages (such as loss of profits and revenues, business interruption, loss of opportunity and use) and all costs incurred by Owner in proving the same (including all attorneys’ fees, and litigation or arbitration expenses) without regard to any limitations whatsoever set forth in this Agreement other than (i) the Liquidated Damages caps in Section 20.2 that would have applied had the Liquidated Damages not been successfully challenged and (ii) the overall limit of liability in Section 20.1. For the avoidance of doubt, this Section 20.3 shall not preclude Contractor from contesting whether it is responsible for (1) delays giving rise to Owner’s claims for Delay Liquidated Damages or (2) the failure to achieve the Performance Guarantees.
