8.6 If an Excusing Cause interferes adversely with, or causes a failure of, the performance of the Project Operations and/or causes the occurrence of a Service Failure and provided that the effect of such Excusing Cause is claimed within ten (10) Business Days of the date on which Project Co became aware (or ought reasonably to have become so aware) of the occurrence of the Excusing Cause, then (subject to Clauses 8.8 (Insured Exposure) and 8.9 (Mitigation of Excusing Cause)) to the extent such failure or interference or occurrence of a Service Failure [or Interim Service Failure] arises as a result of such Excusing Cause:
(a) such failure by Project Co to perform, and any poor performance of, any affected Service [or Interim Service] shall not constitute a breach of the provisions of this Agreement by Project Co;
(b) such interference shall be taken account of in measuring the performance of any affected Service [or Interim Service] in accordance with the Performance Monitoring System [or Interim Service Failure], which shall be operated as though the relevant Service [or Interim Service] had been performed free from such adverse interference; and
(c) any such Service Failure [or Interim Service Failure] shall be deemed not to have occurred,
so that Project Co shall be entitled to payment under this Agreement as if there had been no such interference with the Project Operations.
8.7 For the purpose of Clause 8.6, an Excusing Cause means:23
(a) any breach of any express provision of this Agreement by the Board or any Board Party (unless, and to the extent, caused or contributed to by Project Co or any Project Co Party);
(b) any deliberate act or omission of the Board or of any Board Party or any failure by the Board or Board Party (having regard always to the interactive nature of the activities of the Board and of Project Co) to take reasonable steps to carry out its activities in a manner which minimises undue interference with Project Co's performance of the Project Operations, save where (and to the extent):
(i) caused or contributed to by Project Co or any Project Co Party;
(ii) the Board or Board Party is acting in accordance with a recommendation or instruction of Project Co or any Project Co Party;
(iii) any such act or omission giving rise to such failure was within the contemplation of the parties or was otherwise provided for in this Agreement;
(iv) the consequences of any such deliberate act or omission or other acts or omissions giving rise to such failure would have been prevented by the proper performance of Project Co's obligations under this Agreement; or
(v) [the same arises from an act of the Board or a Board Party compliant with the Contractor's Site Rules.]24
(c) the outbreak or the effects of any outbreak of any Medical Contamination unless and to the extent that the effects of such outbreak are caused (or contributed to) by any failure of Project Co or any Project Co Party to comply with procedures (or Board instructions) relating to control of infection or to take all reasonable steps to mitigate the effect of such Medical Contamination;
(d) the implementation of any action taken by the Board or any Board Party, or any suspension of Project Co's obligation to deliver any or any part of the Services [or Interim Services] or the compliance by Project Co with instructions given by the Board, in each case in the circumstances referred to in Clauses 29.7 to 29.9 (inclusive);
(e) the carrying out of any Small Works in accordance with the terms of this Agreement during the period of time agreed between the Board and Project Co;
(f) the carrying out of planned preventative maintenance in accordance with the Schedule of Programmed Maintenance; or
(g) [the occurrence of the circumstances described in Clause 15.3.]
Where in this Clause 8.7 a cause is said to be an Excusing Cause save to the extent that some other cause operates, the relevant financial effects of the said cause shall be apportioned between the Board or Board Party on the one hand, and Project Co on the other, by reference to the respective influence of each cause.25
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23 It has been suggested on occasion that where Project Co is providing Hard FM and not Soft FM services, additional protections for Project Co or obligations on the Board should be inserted. Scottish Government Health Directorates policy is that this should not be done: the provisions of Clause 8.7 are wide enough to address legitimate concerns from Project Co. If there are express project specific issues, these should be notified specifically to the Board in the context of Clause 8.7.
24 For inclusion in phased projects.
25 In schemes which include phased working, it is possible that Delay Events affecting construction work may also have an impact on service delivery. For this reason, it may be necessary to include additional excusing causes on a project specific basis, although Boards should take care not to do so automatically (for example, Relief Events do not give relief from deductions for service failure in any circumstances, even though they are classified as Delay Events).