Contract between the board of regents of the unversity system of georgia and
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- UNSATISFACTORY PERFORMANCE AND DAMAGES
Upon receipt of notice of termination, Contractor shall have no entitlement to receive any amount for lost revenues or anticipated profits or for expenditures associated with this or any other contract. Upon termination, the BOR, in its discretion, may pay Contractor in accordance with the following:
The BOR shall remain responsible for funding claims in accordance with this Contract. In the event of the failure of Contractor and the BOR to agree in whole or in part as to the amounts with respect to costs to be paid to Contractor in connection with the total or partial termination of work pursuant to this article, the Parties shall handle the dispute in accordance with the conflict resolution provisions at Section 29, Conflict Resolution, of this Contract.
24.1 Unsatisfactory Performance. If the BOR, in its sole discretion, determines that the Administrative Services and/or Deliverables are noncompliant, unacceptable, or unsatisfactory, or Contractor otherwise is in breach of this Contract, Contractor, after notice from the BOR, agrees that it make reasonable attempts to remedy the deficiency or breach. 24.2 Performance Guarantees. Contractor acknowledges that its failure to meet those Deliverables identified as Performance Standards in Attachment I, Performance Guarantees, will cause the BOR substantial damage of types and in amounts that are difficult or impossible to ascertain exactly. The Parties further acknowledge and agree that the liquidated damages described as performance guarantees or performance guarantee assessments in Attachment I are the result of a good faith effort by the BOR to estimate the actual harm caused by Contractor’s failure to meet the Performance Standards and are not intended to be in the nature of a penalty. Accordingly, Contactor agrees that the BOR may assess the liquidated damages against Contractor for failure to meet the Performance Standards. The BOR may deduct the amounts due to the BOR for performance guarantee assessments from any fees or other compensation payable to Contractor or the BOR may require Contractor to remit such amounts within thirty (30) Calendar Days following the BOR’s written notice of the assessment. For Deliverables set forth in this Contract or in the RFP that are not listed as Performance Standards in Attachment I, the BOR may delay payment of $1,000 per Calendar Day until the Deliverable is accepted. In addition to the performance guarantee assessments payment offsets and payment delays described above, should Contractor at any time (1) fail to provide the Administrative Services and/or Deliverables in accordance with the timeframes, schedules, or dates set forth in this Contract; (2) fail in the performance of any term or condition contained in this Contract; or (3) knowingly or unknowingly accept payment from the BOR of an amount in excess of what it is owed at the time of the payment under the terms of this Contract, then the BOR may (in addition to any other contractual, legal or equitable remedies) proceed to take any one or more of the following actions after five (5) Calendar Days’ written notice to Contractor, in its sole discretion: (i) direct Contractor to pay the BOR within thirty (30) Calendar Days the amount of the BOR’s reasonable estimate of the damage caused by any deficiency or delay in the Administrative Services and/or Deliverables, in which case Contractor shall make such payments within such thirty (30) Calendar Days; (ii) direct Contractor to pay the BOR within thirty (30) Calendar Days the amount of any fees or penalties assessed against the BOR as a result of Contractor’s acts or omissions, in which case Contractor shall make such payments within such thirty (30) Calendar Days; (iii) offset any payments due Contractor by an amount described in (i) through (ii) above; and (iv) withhold from any payments due Contractor an amount described in (i) through (ii) above. 24.3 Reasonableness of Provisions. Contractor acknowledges, affirms, ratifies, and agrees that all damages provisions set forth herein meet the criteria for enforceable damages that are reasonable, appropriate, and necessary. 24.4 Other Remedies. The BOR reserves the right to seek all other reasonable and appropriate remedies available at law and in equity with respect to this Contract, including but not limited to, special, consequential, punitive, equitable, and other similar damages and relief. 24.5 Disputes. The Parties agree that disputes arising under this Section 24 shall be handled through negotiations with the BOR. If such dispute cannot be resolved, the Parties will follow the conflict resolution process in Section 29, Conflict Resolution. 24.6 Breach by the BOR. Notwithstanding the foregoing, in the event Contractor fails to meet any Deliverable in accordance with the terms and conditions of this Contract because the BOR materially breaches its obligations and the material breach is the proximate cause of Contractor’s failure to meet a Performance Standard, the BOR shall not assess the Performance Guarantee assessment set forth in Attachment I for such Performance Standard to the extent that the BOR’s material breach was the proximate cause of Contractor’s failure to meet the Performance Standard and subject to Contractor’s having provided the BOR with notice in accordance with Section 31, Notices of this Contract of such material breach within five (5) Calendar Days of when Contractor reasonably believes or has knowledge that the material breach has occurred.
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