1 Subject to paragraphs 2 to 4 inclusive of this Section 5 (Failure by Sub-hubco to Monitor or Report), the Performance Monitoring Report produced by Sub-hubco 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 Deductions pursuant to Section 3 (Deductions from Monthly Service Payments) of this Schedule Part 14 (Payment Mechanism).
2 Either party may give written notice to the other if it believes there is an error or omission in a Monthly Service Report provided that, save in the circumstances referred to in paragraph 6 below, such notice must be given before the end of the Contract Month that falls two Contract Months after the Contract Month in which the relevant Monthly Service Report was submitted by Sub-hubco. The parties shall endeavour to agree the amendments required to rectify the error or omission (if any) within 10 Business Days of notice being given in accordance with this paragraph 2, failing which either party may, on giving written notice to the other, refer the matter to the Dispute Resolution Procedure.
3 Where Sub-hubco fails to monitor or accurately to report a Performance Failure or an Availability Failure in the circumstances referred to in paragraph 6 of this Section 5 (Failure by Sub-hubco to Monitor or Report), for the purposes of paragraph 1 of Section 1 (General Requirements) of Schedule Part 19 (Record Provisions) the Authority shall be deemed to have reasonable cause to require that Sub-hubco shall make available to the Authority for inspection such of the records referred to in paragraphs 10 and 11 of Section 2 (Records to be Kept) of Schedule Part 19 (Record Provisions) as the Authority may specify.
4 Sub-hubco shall upon submission of a valid invoice pay to the Authority a sum equal to the costs reasonably incurred by the Authority in carrying out any inspection and investigation of records made available pursuant to paragraph 3 above.
5 If the Authority's inspection or investigation of records made available pursuant to paragraph 3 above reveals any further matters of the types 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 Authority shall, in addition, be entitled to make Deductions in respect of any Performance Failures or Availability Failures in the manner prescribed Section 3 (Deductions from Monthly Service Payments) of this Schedule Part 14 (Payment Mechanism). The Monthly Service Payment for the Contract Month in which any such Deduction would (but for the error or omission in the Performance Monitoring Report) have been made shall be re-calculated to take account of such Deduction and the amount of such Deduction shall be immediately due and payable by Sub-hubco to the Authority together with interest at the Default Interest Rate from the date on which the Authority paid the Monthly Invoice for the relevant Contract Month until the date on which payment is made by Sub-hubco.
6 For the purposes of paragraphs 2 and 3 of this Section 5 (Failure by Sub-hubco to Monitor or Report) the relevant circumstances are:
6.1 fraudulent action or inaction; or
6.2 deliberate misrepresentation; or
6.3 gross misconduct or gross incompetence,
in each case on the part of Sub-hubco or a Sub-hubco Party.
7 The provisions of this Section 5 (Failure by Sub-hubco to Monitor or Report) shall be without prejudice to any rights of the Authority in this Agreement pursuant to Clause 24 (Monitoring of Performance), Clause 40 (Sub-hubco Events of Default) and Clause 44 (Corrupt Gifts and Payments).