Template:UKA Annex (d)(ix): Difference between revisions

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{{euaprov|(d)(ix)}} '''{{euaprov|No Consequential Loss}}''' <br>
{{ukaprov|(d)(ix)}} '''{{ukaprov|No Consequential Loss}}''' <br>
Except to the extent included in any amount payable under Section {{isdaprov|6(e)}} of the {{isdaprov|Agreement}}, any payment in respect of {{euaprov|Receiving Party’s Replacement Cost}} or {{euaprov|Delivering Party’s Replacement Cost}}, or any payment in respect of {{euaprov|Encumbrance Loss Amount}}, neither party is liable to the other, whether in contract, tort (including [[negligence]] and breach of duty) or otherwise, for any business interruption or loss of use, profits, contracts, production or revenue or for any [[Consequential loss|consequential]] or [[indirect loss]] or [[Damages|damage]] of any kind however arising. <br>
Except to the extent included in any amount payable under Section {{isdaprov|6(e)}} of the {{isdaprov|Agreement}}, any payment in respect of {{ukaprov|Receiving Party’s Replacement Cost}} or {{ukaprov|Delivering Party’s Replacement Cost}}, or any payment in respect of {{ukaprov|Encumbrance Loss Amount}}, neither party is liable to the other, whether in contract, tort (including [[negligence]] and breach of duty) or otherwise, for any business interruption or loss of use, profits, contracts, production or revenue or for any [[Consequential loss|consequential]] or [[indirect loss]] or [[Damages|damage]] of any kind however arising. <br>
{{euaprov|(d)(x)}} '''{{euaprov|Other Fees and Expenses}}'''<br>
{{ukaprov|(d)(x)}} '''{{ukaprov|Other Fees and Expenses}}'''<br>
 
All costs, fees and charges assessed or imposed by a {{ukaprov|Relevant Authority}} in connection with the transfer of {{ukaprov|Allowances}} pursuant to an {{ukaprov|UK Emissions Allowance Transaction}} shall be the responsibility of the party upon whom such costs, fees and/or charges are allocated by the {{ukaprov|Relevant Authority}}. <br>
All costs, fees and charges assessed or imposed by a {{euaprov|Relevant Authority}} in connection with the transfer of {{euaprov|Allowances}} pursuant to an {{euaprov|EU Emissions Allowance Transaction}} shall be the responsibility of the party upon whom such costs, fees and/or charges are allocated by the {{euaprov|Relevant Authority}}. <br>
{{ukaprov|(d)(xi)}} '''{{ukaprov|Failure to Deliver (Alternative Method) - EEP Applicable}}'''<br>
{{euaprov|(d)(xi)}} '''{{euaprov|Failure to Deliver (Alternative Method) - EEP Applicable}}'''<br>
:If “'''{{ukaprov|Failure to Deliver (Alternative Method)}}'''” and “'''{{ukaprov|EEP}}'''” are specified to be applicable in the Annex to this Part or the {{ukaprov|Confirmation}} for the relevant {{ukaprov|UK Emissions Allowance Transaction}}, then, with regard to that {{ukaprov|UK Emissions Allowance Transaction}}, in the event that {{ukaprov|Receiving Party}} incurs an {{ukaprov|Excess Emissions Penalty}} directly caused by {{ukaprov|Delivering Party}}’s failure to deliver the {{ukaprov|Allowances to be Delivered}} on a {{ukaprov|Delivery Date}} falling within the {{ukaprov|EEP Risk Period}} other than as a result of the failure of {{ukaprov|Receiving Party}} to comply with the {{ukaprov|Requirements under the Scheme}} as specified above, the existence of an {{isdaprov|Illegality}}, the existence of a {{ukaprov|Settlement Disruption Event}} or the existence of a {{ukaprov|Suspension Event}} (the “'''{{ukaprov|EEP Non-delivery}}'''” and the amount of such {{ukaprov|Excess Emissions Penalty}} so caused, the “'''{{ukaprov|Indemnifiable EEP}}'''”), then {{ukaprov|Delivering Party}} shall pay to {{ukaprov|Receiving Party}}, in addition to the {{ukaprov|Receiving Party’s Replacement Cost}} (if any), an amount equal to the amount of the  {{ukaprov|Indemnifiable EEP}} paid by {{ukaprov|Receiving Party}} (the “{{ukaprov|EEP Payment}}”), provided that such {{ukaprov|EEP Payment}} shall not exceed the product of the {{ukaprov|RPRC Shortfall}} for that {{ukaprov|UK Emissions Allowance Transaction}} and the maximum per Allowance rate of {{ukaprov|Excess Emissions Penalty}} applicable at the relevant time. <br>
:
:{{ukaprov|Delivering Party}}’s obligation to pay the {{ukaprov|EEP Payment}} in respect of the {{ukaprov|EEP Non-delivery}} shall be conditional upon {{ukaprov|Receiving Party}} demonstrating to the reasonable satisfaction of {{ukaprov|Delivering Party}}:
If “'''{{euaprov|Failure to Deliver (Alternative Method)}}'''” and “'''{{euaprov|EEP}}'''” are specified to be applicable in the Annex to this Part or the {{euaprov|Confirmation}} for the relevant {{euaprov|EU Emissions Allowance Transaction}}, then, with regard to that {{euaprov|EU Emissions Allowance Transaction}}, in the event that {{euaprov|Receiving Party}} incurs an {{euaprov|Excess Emissions Penalty}} directly caused by {{euaprov|Delivering Party}}’s failure to deliver the {{euaprov|Allowances to be Delivered}} on a {{euaprov|Delivery Date}} falling within the {{euaprov|EEP Risk Period}} other than as a result of the failure of {{euaprov|Receiving Party}} to comply with the {{euaprov|Requirements under the Scheme}} as specified above, the existence of an {{isdaprov|Illegality}}, the existence of a {{euaprov|Settlement Disruption Event}} or the existence of a {{euaprov|Suspension Event}} (the “'''{{euaprov|EEP Non-delivery}}'''” and the amount of such {{euaprov|Excess Emissions Penalty}} so caused, the “'''{{euaprov|Indemnifiable EEP}}'''”), then {{euaprov|Delivering Party}} shall pay to {{euaprov|Receiving Party}}, in addition to the {{euaprov|Receiving Party’s Replacement Cost}} (if any), an amount equal to the amount of the  {{euaprov|Indemnifiable EEP}} paid by {{euaprov|Receiving Party}} (the “{{euaprov|EEP Payment}}”), provided that such {{euaprov|EEP Payment}} shall not exceed the product of the {{euaprov|RPRC Shortfall}} for that {{euaprov|EU Emissions Allowance Transaction}} and the maximum per Allowance rate of {{euaprov|Excess Emissions Penalty}} applicable at the relevant time. <br>
::(a) that {{ukaprov|Receiving Party}} has incurred and paid the {{ukaprov|EEP Payment}} consequent on a shortfall of Allowances as at the {{ukaprov|Reconciliation Deadline}} immediately succeeding the {{ukaprov|Delivery Date}} (the “'''{{ukaprov|Deadline Shortfall}}'''”);
 
::(b) the extent to which {{ukaprov|Receiving Party}}’s liability to make the {{ukaprov|EEP Payment}} resulted from Delivering Party’s {{ukaprov|EEP Non-delivery}};
{{euaprov|Delivering Party}}’s obligation to pay the {{euaprov|EEP Payment}} in respect of the {{euaprov|EEP Non-delivery}} shall be conditional upon {{euaprov|Receiving Party}} demonstrating to the reasonable satisfaction of {{euaprov|Delivering Party}}:
::(c) the extent to which {{ukaprov|Receiving Party}}’s liability to make the {{ukaprov|EEP Payment}} would have been incurred notwithstanding Delivering Party’s {{ukaprov|EEP Non-delivery}}; and
:(a) that {{euaprov|Receiving Party}} has incurred and paid the {{euaprov|EEP Payment}} consequent on a shortfall of Allowances as at the {{euaprov|Reconciliation Deadline}} immediately succeeding the {{euaprov|Delivery Date}} (the “'''{{euaprov|Deadline Shortfall}}'''”);
::(d) the extent to which {{ukaprov|Receiving Party}}’s liability to make the {{ukaprov|EEP Payment}} arose due to any third party’s failure(s) to deliver any Allowance to be Delivered to {{ukaprov|Receiving Party}} in accordance with the terms of any agreements between {{ukaprov|Receiving Party}} and such third party.
:(b) the extent to which {{euaprov|Receiving Party}}’s liability to make the {{euaprov|EEP Payment}} resulted from Delivering Party’s {{euaprov|EEP Non-delivery}};
:Receiving Party agrees to provide all other information to {{ukaprov|Delivering Party}} in order for {{ukaprov|Delivering Party}} to make a commercially reasonable assessment of the extent to which the {{ukaprov|Deadline Shortfall}} was directly caused by its {{ukaprov|EEP Non-delivery}}.
:(c) the extent to which {{euaprov|Receiving Party}}’s liability to make the {{euaprov|EEP Payment}} would have been incurred notwithstanding Delivering Party’s {{euaprov|EEP Non-delivery}}; and
:In the event that the {{ukaprov|Deadline Shortfall}} is directly caused by the failure of a number of parties (including {{ukaprov|Delivering Party}} and {{ukaprov|Receiving Party}}), then {{ukaprov|Delivering Party}}’s liability shall be to pay the {{ukaprov|EEP Payment}} in respect of its proportionate share of the {{ukaprov|Deadline Shortfall}} as determined by the parties in a commercially reasonable manner.  In no circumstances shall {{ukaprov|Receiving Party}} seek to claim an {{ukaprov|EEP Payment}} from {{ukaprov|Delivering Party}} such that when aggregated with all the other claims made by {{ukaprov|Receiving Party}} to other parties in respect of its liability to make the {{ukaprov|EEP Payment}} and the liability caused by {{ukaprov|Receiving Party}}’s own action or inaction, it is more than {{ukaprov|Receiving Party}}’s liability to make the {{ukaprov|EEP Payment}}.
:(d) the extent to which {{euaprov|Receiving Party}}’s liability to make the {{euaprov|EEP Payment}} arose due to any third party’s failure(s) to deliver any Allowance to be Delivered to {{euaprov|Receiving Party}} in accordance with the terms of any agreements between {{euaprov|Receiving Party}} and such third party.
:If {{ukaprov|Delivering Party}} disputes in good faith the amount of the {{ukaprov|EEP Payment}} claimed by {{ukaprov|Receiving Party}}, {{ukaprov|Delivering Party}} shall so notify {{ukaprov|Receiving Party}} stating the reasons for the dispute and the obligation to pay the {{ukaprov|EEP Payment}} shall be suspended until such dispute is resolved.  The parties shall seek to settle the dispute regarding the {{ukaprov|EEP Payment}} as soon as reasonably possible.
 
:Once the amount of the {{ukaprov|EEP Payment}} is agreed or any dispute in relation thereto resolved, {{ukaprov|Delivering Party}} shall pay such determined {{ukaprov|EEP Payment}} to {{ukaprov|Receiving Party}} within two (2) Business Days against {{ukaprov|Receiving Party}}’s {{ukaprov|VAT Invoice}} in respect thereof.  
Receiving Party agrees to provide all other information to {{euaprov|Delivering Party}} in order for {{euaprov|Delivering Party}} to make a commercially reasonable assessment of the extent to which the {{euaprov|Deadline Shortfall}} was directly caused by its {{euaprov|EEP Non-delivery}}.
 
In the event that the {{euaprov|Deadline Shortfall}} is directly caused by the failure of a number of parties (including {{euaprov|Delivering Party}} and {{euaprov|Receiving Party}}), then {{euaprov|Delivering Party}}’s liability shall be to pay the {{euaprov|EEP Payment}} in respect of its proportionate share of the {{euaprov|Deadline Shortfall}} as determined by the parties in a commercially reasonable manner.  In no circumstances shall {{euaprov|Receiving Party}} seek to claim an {{euaprov|EEP Payment}} from {{euaprov|Delivering Party}} such that when aggregated with all the other claims made by {{euaprov|Receiving Party}} to other parties in respect of its liability to make the {{euaprov|EEP Payment}} and the liability caused by {{euaprov|Receiving Party}}’s own action or inaction, it is more than {{euaprov|Receiving Party}}’s liability to make the {{euaprov|EEP Payment}}.
 
If {{euaprov|Delivering Party}} disputes in good faith the amount of the {{euaprov|EEP Payment}} claimed by {{euaprov|Receiving Party}}, {{euaprov|Delivering Party}} shall so notify {{euaprov|Receiving Party}} stating the reasons for the dispute and the obligation to pay the {{euaprov|EEP Payment}} shall be suspended until such dispute is resolved.  The parties shall seek to settle the dispute regarding the {{euaprov|EEP Payment}} as soon as reasonably possible.
 
Once the amount of the {{euaprov|EEP Payment}} is agreed or any dispute in relation thereto resolved, {{euaprov|Delivering Party}} shall pay such determined {{euaprov|EEP Payment}} to {{euaprov|Receiving Party}} within two (2) Business Days against {{euaprov|Receiving Party}}’s {{euaprov|VAT Invoice}} in respect thereof.  
<br>
<br>
{{euaprov|(d)(xii)}} '''{{euaprov|Specified Holding Accounts and Modifications of Party’s Specified Holding Accounts}}'''<br>
Each party agrees with the other, so long as either party has or may have any obligation under an {{euaprov|EU Emissions Allowance Transaction}}, as follows:
:(1) In respect of {{euaprov|Receiving Party}}:
::(A) {{euaprov|Receiving Party}} shall ensure that one or more of such {{euaprov|Holding Account}}s registered in accordance with Part {{euaprov|(d)(vi)}}(''{{euaprov|Requirements under the Scheme}}'') above are specified in the Annex to this Part or in the relevant {{isdaprov|Confirmation}}; and
::(B) {{euaprov|Receiving Party}} may from time to time (a) amend the order in which its {{euaprov|Specified Holding Account}}s are listed, (b) add a new {{euaprov|Specified Holding Account}} as the last on the list of {{euaprov|Specified Holding Account}}s, [[and/or]] (c) remove a {{euaprov|Specified Holding Account}} from those listed, in each case in respect of an {{euaprov|EU Emissions Allowance Transaction}}, provided that it notifies {{euaprov|Delivering Party}} in writing of such amendment, addition and/or removal (including the provision of the relevant account details) no less than thirty (30) calendar days prior to the next {{euaprov|Delivery Date}} under that {{euaprov|EU Emissions Allowance Transaction}}, and provided further that in the case of (a) and / or (c), {{euaprov|Delivering Party}} notifies {{euaprov|Receiving Party}} in writing that it consents to such changes within five (5) {{euaprov|Delivery Business Day}}s of receiving such notice from {{euaprov|Receiving Party}};
:(2) In respect of {{euaprov|Delivering Party}}:
::(A) {{euaprov|Delivering Party}} may specify one or more of such {{euaprov|Holding Account}}s registered in accordance with Part 7 (d)(vi)(Requirements under the Scheme) above in the Annex to this Part or in the relevant Confirmation; and
::(B) {{euaprov|Delivering Party}} may from time to time, add a new {{euaprov|Holding Account}} or an additional {{euaprov|Holding Account}} to those listed in the Annex to this Part or in the relevant Confirmation provided that it notifies {{euaprov|Receiving Party}} in writing of such addition (including the relevant account details) on or before the day that is ten (10) {{euaprov|Delivery Business Day}}s before the next {{euaprov|Delivery Date}} under that {{euaprov|EU Emissions Allowance Transaction}}.  <br>

Revision as of 16:10, 31 January 2023

(d)(ix) No Consequential Loss
Except to the extent included in any amount payable under Section 6(e) of the Agreement, any payment in respect of Receiving Party’s Replacement Cost or Delivering Party’s Replacement Cost, or any payment in respect of Encumbrance Loss Amount, neither party is liable to the other, whether in contract, tort (including negligence and breach of duty) or otherwise, for any business interruption or loss of use, profits, contracts, production or revenue or for any consequential or indirect loss or damage of any kind however arising.
(d)(x) Other Fees and Expenses
All costs, fees and charges assessed or imposed by a Relevant Authority in connection with the transfer of Allowances pursuant to an UK Emissions Allowance Transaction shall be the responsibility of the party upon whom such costs, fees and/or charges are allocated by the Relevant Authority.
(d)(xi) Failure to Deliver (Alternative Method) - EEP Applicable

If “Failure to Deliver (Alternative Method)” and “EEP” are specified to be applicable in the Annex to this Part or the Confirmation for the relevant UK Emissions Allowance Transaction, then, with regard to that UK Emissions Allowance Transaction, in the event that Receiving Party incurs an Excess Emissions Penalty directly caused by Delivering Party’s failure to deliver the Allowances to be Delivered on a Delivery Date falling within the EEP Risk Period other than as a result of the failure of Receiving Party to comply with the Requirements under the Scheme as specified above, the existence of an Illegality, the existence of a Settlement Disruption Event or the existence of a Suspension Event (the “EEP Non-delivery” and the amount of such Excess Emissions Penalty so caused, the “Indemnifiable EEP”), then Delivering Party shall pay to Receiving Party, in addition to the Receiving Party’s Replacement Cost (if any), an amount equal to the amount of the Indemnifiable EEP paid by Receiving Party (the “EEP Payment”), provided that such EEP Payment shall not exceed the product of the RPRC Shortfall for that UK Emissions Allowance Transaction and the maximum per Allowance rate of Excess Emissions Penalty applicable at the relevant time.
Delivering Party’s obligation to pay the EEP Payment in respect of the EEP Non-delivery shall be conditional upon Receiving Party demonstrating to the reasonable satisfaction of Delivering Party:
(a) that Receiving Party has incurred and paid the EEP Payment consequent on a shortfall of Allowances as at the Reconciliation Deadline immediately succeeding the Delivery Date (the “Deadline Shortfall”);
(b) the extent to which Receiving Party’s liability to make the EEP Payment resulted from Delivering Party’s EEP Non-delivery;
(c) the extent to which Receiving Party’s liability to make the EEP Payment would have been incurred notwithstanding Delivering Party’s EEP Non-delivery; and
(d) the extent to which Receiving Party’s liability to make the EEP Payment arose due to any third party’s failure(s) to deliver any Allowance to be Delivered to Receiving Party in accordance with the terms of any agreements between Receiving Party and such third party.
Receiving Party agrees to provide all other information to Delivering Party in order for Delivering Party to make a commercially reasonable assessment of the extent to which the Deadline Shortfall was directly caused by its EEP Non-delivery.
In the event that the Deadline Shortfall is directly caused by the failure of a number of parties (including Delivering Party and Receiving Party), then Delivering Party’s liability shall be to pay the EEP Payment in respect of its proportionate share of the Deadline Shortfall as determined by the parties in a commercially reasonable manner. In no circumstances shall Receiving Party seek to claim an EEP Payment from Delivering Party such that when aggregated with all the other claims made by Receiving Party to other parties in respect of its liability to make the EEP Payment and the liability caused by Receiving Party’s own action or inaction, it is more than Receiving Party’s liability to make the EEP Payment.
If Delivering Party disputes in good faith the amount of the EEP Payment claimed by Receiving Party, Delivering Party shall so notify Receiving Party stating the reasons for the dispute and the obligation to pay the EEP Payment shall be suspended until such dispute is resolved. The parties shall seek to settle the dispute regarding the EEP Payment as soon as reasonably possible.
Once the amount of the EEP Payment is agreed or any dispute in relation thereto resolved, Delivering Party shall pay such determined EEP Payment to Receiving Party within two (2) Business Days against Receiving Party’s VAT Invoice in respect thereof.


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