such services to any third party; except in the case of Buyer default
under Section 13.2.1. Notwithstanding the above, Seller has the right to use
Ancillary Services to meet any requirement of the Interconnected Utility System,
the ISO, or their successors.
9.2
Operational Considerations.
Buyer may Dispatch the Facility
with the objective to avoid the need for energy imbalance service from a control
area service provider, and to provide reactive power, load following (consistent
with the scheduling), voltage control, and frequency response, provided that
such services do not cause the Facility to operate outside of the Design Limits,
and do not impose any additional costs or liabilities on Seller.
9.3
Future Enhancements.
Seller shall provide such services,
including but not limited to automatic generation control, to the extent that
Buyer agrees to be responsible for reasonable incremental costs incurred by
Seller to provide such services subject to mutual agreement of the parties
working in good faith to arrive at an equitable arrangement.
31
10.
Limitation of Liability and Exclusive Remedies
10.1
CONSEQUENTIAL DAMAGES.
IN NO EVENT OR UNDER ANY CIRCUMSTANCES
SHALL EITHER PARTY (INCLUDING SUCH PARTY'S AFFILIATES AND SUCH PARTY'S AND SUCH
AFFILIATES' RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) BE LIABLE TO
THE OTHER PARTY (INCLUDING SUCH PARTY'S AFFILIATES AND SUCH PARTY'S AND SUCH
AFFILIATE'S RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS) FOR ANY
SPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES OR
DAMAGES IN THE NATURE OF LOST PROFITS, WHETHER SUCH LOSS IS BASED ON CONTRACT,
WARRANTY OR TORT. A PARTY'S LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO
DIRECT, ACTUAL DAMAGES.
10.2
SOLE REMEDIES FOR FAILURE TO DELIVER OR RELATED
BREACHES.
NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, OTHER THAN
AS PROVIDED IN SECTION 10.3 BELOW, BUYER'S SOLE REMEDY FOR DAMAGES AND SELLER'S
SOLE LIABILITY FOR DAMAGES FOR SELLER'S DEFAULT RELATING TO, ARISING OUT OF, OR
IN ANY WAY CONNECTED WITH ANY FAILURE BY SELLER TO MEET GUARANTEED SUMMER ON
PEAK AVAILABILITY OR GUARANTEED NON-SUMMER ON PEAK AVAILABILITY, TO DELIVER (OR
CAUSE TO BE DELIVERED) ELECTRIC ENERGY, REPLACEMENT POWER OR SUBSTITUTE POWER AS
DISPATCHED BY BUYER, OR FAILURE TO COMPLY WITH ANY FACILITY PERFORMANCE RELATED
PROVISIONS INCLUDING SECTIONS 4.1, 4.5.7, 4.5.8 OR 6.1, SHALL BE THE ADJUSTMENT
TO CAPACITY CHARGES BASED UPON THE AVAILABILITY ADJUSTMENT SUBJECT TO THE LIMIT
ON SELLER'S LIABILITY FOR SUCH ADJUSTMENT SET FORTH IN SECTION ; AND SUCH
AVAILABILITY ADJUSTMENT SHALL BE CONSIDERED LIQUIDATED DAMAGES IN LIEU OF ANY
OTHER DAMAGES AT LAW, IN EQUITY OR AS SET FORTH ELSEWHERE IN THIS AGREEMENT.
10.3
SOLE REMEDY FOR LATE COMMERCIAL OPERATIONS.
BUYER'S SOLE
REMEDIES AND SELLER'S SOLE LIABILITY FOR FAILURE OF THE COMMERCIAL OPERATIONS
DATE TO OCCUR ON OR BEFORE THE TARGET COD (INCLUDING FAILURE TO COMPLY WITH
SECTION 3) SHALL BE (a) THE OFFSET OF DELAY LDs AS SET FORTH IN SECTION 3.3
AGAINST CAPACITY CHARGES AS THEY COME DUE, SUBJECT TO THE LIMITATION ON SELLER'S
LIABILITY SET FORTH IN SUCH SECTION 3.3 AND (b) TERMINATION IN ACCORDANCE WITH
SECTION 3.3.7, IF THE COMMERCIAL