the period of this Contract, either Party becomes aware
of:
3.5.1
A FAILURE BY THE OTHER PARTY TO PERFORM ANY
OBLIGATIONS TO WHICH IT IS SUBJECT PURSUANT TO THIS CONTRACT; AND/OR
3.5.2
A DEFECT OF ANY NATURE IN THE PERFORMANCE AND
PROVISION OF ANY TASKS BY THE CONTRACTOR AND ANY SUBCONTRACTOR, OR
SUB-SUB-CONTRACTOR
which in either case, in the reasonable opinion of that Party, has an adverse
effect on the proper performance of this Contract it shall immediately notify
the other Party.
In particular, but without limiting the foregoing, each Party shall immediately
notify the other Party of any failure of performance or defect of which it
becomes aware which may give rise to any liability to the other Party.
69
3.6.
Authority Rights In Respect Of Customer
Contracts
3.6.1
NEW BUSINESS AND AMENDMENTS TO CUSTOMER CONTRACTS
EXCEPT TO THE EXTENT THAT THE CONTRACTOR HAS PERMITTED
ACTIVITIES PURSUANT TO CLAUSE 3.6.4 (PERMITTED ACTIVITIES) AND SUBJECT TO THE
AUTHORITY'S RIGHTS UNDER CLAUSE 3.6.3 (AUTHORITY'S RIGHT TO INSTRUCT), THE
CONTRACTOR SHALL NOT ENTER INTO NEW CUSTOMER CONTRACT (A "NEW CUSTOMER
CONTRACT") NOR AMEND ANY EXISTING CUSTOMER CONTRACT (OR SUGGEST TO THE
COUNTERPARTY ANY AMENDMENT OTHER THAN ON A WITHOUT PREJUDICE BASIS) UNLESS THE
AUTHORITY HAS GIVEN ITS PRIOR WRITTEN CONSENT PURSUANT TO PARAGRAPH 3.5 OF THE
PART 1 OF THE COMMERCIAL SCHEDULE (CUSTOMER CONTRACTS).
IN SEEKING THE AUTHORITY'S PRIOR WRITTEN CONSENT TO A NEW
CUSTOMER CONTRACT OR AN AMENDMENT (AN "AMENDMENT") TO AN EXISTING CUSTOMER
CONTRACT, THE CONTRACTOR SHALL CONSULT WITH THE AUTHORITY IN ACCORDANCE WITH
PARAGRAPH 1 OF PART 1 OF THE COMMERCIAL SCHEDULE (CUSTOMER CONTRACTS) AND THE
PROCEDURE SET OUT IN PARAGRAPHS 1 TO 3 OF PART 1 OF THE COMMERCIAL SCHEDULE
(CUSTOMER CONTRACTS) SHALL APPLY (AS APPLICABLE).
3.6.2
AUTHORITY'S RIGHT TO BE CONSULTED IN RESPECT OF
CUSTOMER CONTRACTS
Except to the extent that the Contractor has Permitted Activities pursuant to
Clause 3.6.4 (Permitted Activities), the Contractor shall consult the Authority
in respect of the exercise of any discretion under the Customer Contracts
including:
WHETHER OR NOT TO EXERCISE ANY RIGHTS UNDER THE RELEVANT
CUSTOMER CONTRACT (INCLUDING ANY RIGHTS TO TERMINATE);
WHETHER OR NOT TO WAIVE (OR CHOOSE NOT TO ENFORCE) ANY
OBLIGATIONS OF THE COUNTERPARTY UNDER THE RELEVANT CUSTOMER CONTRACT IN WHOLE OR
IN PART OR TO SEEK OR ACCEPT A WAIVER FROM THE COUNTERPARTY OF THE CONTRACTOR'S
OBLIGATIONS UNDER THE RELEVANT CUSTOMER CONTRACT;
CHOOSING BETWEEN ANY OPTIONS THAT ARISE CONCERNING THE
MANNER IN WHICH THE CONTRACTOR COULD PERFORM THE RELEVANT CUSTOMER CONTRACT;
WHEN THE CONTRACTOR IS UNCERTAIN ABOUT WHAT IT IS REQUIRED
TO DO UNDER THE RELEVANT CUSTOMER CONTRACT;
HOW TO MITIGATE ANY PROBLEMS THAT ARISE UNDER OR IN
CONNECTION WITH ANY CUSTOMER CONTRACT,
and the procedure set out in Paragraph 1 of Part 1 the Commercial Schedule
(Customer Contracts)
shall apply.
3.6.3
AUTHORITY'S RIGHT TO INSTRUCT
NOTWITHSTANDING THE PERMITTED ACTIVITIES UNDER CLAUSE
3.6.4 (PERMITTED ACTIVITIES), THE AUTHORITY SHALL BE ENTITLED TO INSTRUCT THE
CONTRACTOR TO EXERCISE OR NOT