11
ESCALATION
Pricing under this Agreement shall be escalated in accordance with this Section 11.
Contract will be increased annually by 2% to be applied to the operational hour
rate of the Agreement ona cumulative annual basis January 15 of each contractual
year. For current service rate sheet, see Contract Pricing attached as Exhibit D.
12.
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3)
FORCE MAJEURE
A Force Majeure Event is an extreme event that is neither reasonably
foreseeable, nor within the control of the parties. For the purposes of this
agreement a force majeure includes, but is not limited to, war, strike, riot,
crime, act of God (hurricane, flood, blizzard, earthquake, volcanic eruption,
etc.}, act of terrorism, and the like, but shal! not include any circumstance
attributable to an act or omission by either party, nor failure to reasonably
plan and prepare for events once they become known, or to reasonably
respond to circumstances after they occur.
Neither party shall be held to have committed an Event of Default in respect
of any obligation under this Agreement if prevented from performing that
obligation, in whole or in part, because of a Force Majeure Event.
If a Force Majeure Event prevents either party from performing any of its
obligations under this Agreement, that party shall:
promptly notify the other party of the Force Majeure Event and its
assessment in good faith of the effect that the event will have on its ability
to perform any of its obligations. {f the immediate notice is not in writing, it
shall be confirmed in writing as soon as reasonably practical;
not be entitled to suspend performance of any of its obligations under this
Agreement to any greater extent or for any longer time than the Force
Majeure Event requires it to do;
use commercially reasonable efforts to mitigate the effects of the Force
Majeure Event, remedy its inability to perform, and resume full performance
of its obligations;
keep the other party continually informed of its efforts;
provide written notice to the other party when it resumes performance of
any obligations affected by the Force Majeure Event.
If a Force Majeure Event causes the damage to the Plant such that
reconstruction of the Plant would take more than one (1) year, in the opinion
of a professional hired by Customer, Customer may terminate this Agreement
upon written notice to MCAT within one hundred and twenty (120) days of
such Force Majeure Event.
