Common use of Force Majeure Failure Clause in Contracts

Force Majeure Failure. Buyer shall have the right, but not the obligation, to terminate this Agreement after the occurrence of the following: (i) if during the Delivery Term: (A) the Units’ Availability, taking into account all hours of unavailability, including those due to Force Majeure (in excess of Excused Hours), averages less than sixty percent (60%) over a rolling 12-month period; or (B) if the Tested Capacity of all the Units (cumulatively) adjusted to ISO Conditions is less than eighty percent (80%) of the applicable Design Capacity due to an event of Force Majeure, unless Seller is able to demonstrate a Tested Capacity for all of the Units (cumulatively) in excess of eighty-five percent (85%) of the Design Capacity within (12) months of the date on which the Tested Capacity of less than eighty percent (80%) was established [subject to modification based on the Minimum Load of Unit]; or (C) the Project is destroyed or rendered inoperable by an event of Force Majeure caused by a catastrophic natural disaster. (ii) if prior to the Initial Delivery Date, as applicable, Seller is unable, due solely to a Force Majeure event, to achieve the Construction Start Date or other Critical Milestones, after applicable extensions or cure periods have run, as set forth in Section 11.2 and Appendix XXVII (in either case a “Force Majeure Development Failure”).