1 Subject to paragraphs 2 to 5 inclusive of this Section E, the Performance Monitoring Report produced by Project Co for any Contract Month shall be the source of the factual information regarding the performance of the Services for the relevant Contract Month for the purposes of calculating the relevant Monthly Service Payment, the number of Service Failure Points awarded and the number of Warning Notices awarded.
2 If there shall be any error or omission in the Performance Monitoring Report for any Contract Month Project Co and the Board shall agree the amendment to the Performance Monitoring Report or, failing agreement within 10 days of notification of the error or omission which shall not be made more than 2 Contract Months following the submission of the relevant Performance Monitoring Report to the Board except in the circumstances referred to in paragraph 7 of this Section E either party may, subject to giving prior written notice to the other party, refer the matter to the [Dispute Resolution Procedure].
3 If Project Co fails to monitor or accurately to report an Event, a Performance Failure, an Unavailability Event or an Ad-Hoc Service Request then, without prejudice to the Deduction to be made in respect of the relevant Performance Failure or Unavailability Event (if any), the failure to monitor or report the Event, Performance Failure, Unavailability Event or Ad-Hoc Service Request shall be deemed to be a new Medium Performance Failure, unless the circumstances set out in paragraph 7 of this Section E apply, in which case there shall be deemed to be a new Major Performance Failure.
4 Where Project Co fails to monitor or accurately to report a Performance Failure or an Unavailability Event in the circumstances referred to in paragraph 7 of this Section E, for the purposes of paragraph 1 of Section 1 of Part 25 of the Schedule (Record Provisions) the Board shall be deemed to have reasonable cause to require that Project Co shall make available to the Board for inspection such of the records referred to in paragraphs 10 and 11 of Section 2 of Part 25 of the Schedule as the Board may specify.
5 Project Co shall upon submission of a valid invoice pay to the Board a sum equal to the costs reasonably incurred by the Board in carrying out any inspection and investigation of records made available pursuant to paragraph 4 above.
6 In the event that the Board's inspection or investigation of records made available pursuant to paragraph 4 above reveals any further matters of the type referred to in paragraphs 2 and 3 above, those matters shall be dealt with in accordance with paragraph 2 or 3 as appropriate and the Board shall, in addition, be entitled to make Deductions in respect of any Performance Failures or Unavailability Events in the manner prescribed in Section B of this Part 18 of the Schedule. Any such Deductions shall be made from the Monthly Service Payment covered by the Monthly Service Payment Statement issued following calculation of the Deductions or, to the extent that the Board is unable to make any further deductions from the Monthly Service Payment in respect of that Contract Month by virtue of paragraph 1.2 of Section C of this Part 18 of the Schedule, may be carried forward and deducted from Monthly Service Payments due in respect of subsequent Contract Months.
7 For the purposes of paragraphs 2, 3, and 4 of this Section E the relevant circumstances are:-
7.1 fraudulent action or inaction; or
7.2 deliberate misrepresentation; or
7.3 gross misconduct or incompetence
in each case on the part of Project Co or a Project Co Party.
8 The provisions of this Section E shall be without prejudice to any rights of the Board in this Agreement pursuant to Clause 29 (Monitoring of Performance), Clause 44 (Project Co Events of Default) and Clause 54 (Corrupt Gifts and Payments).