9.3 Subject to:
(a) any other express right of the Board pursuant to this Agreement; and
(b) the Board's right to claim, on or after termination of this Agreement, the amount of its reasonable costs, losses, damages and expenses suffered or incurred by it as a result of rectifying or mitigating the effects of any breach of this Agreement by Project Co save to the extent that the same has already been recovered by the Board pursuant to this Agreement or has been taken into account to reduce any compensation payable by the Board pursuant to Clause 48 (Compensation on Termination),
the sole remedy of the Board in respect of a failure to provide the Services in accordance with this Agreement shall be the operation of the Payment Mechanism.27
9.4 Nothing in Clause 9.3 shall prevent or restrict the right of the Board to seek interdict or a decree of specific implement or other discretionary remedies of the court.
9.5 Notwithstanding any other provision of this Agreement, neither party shall be entitled to recover compensation or make a claim under this Agreement, the [Licence & Ground Lease], or any other agreement in relation to the Project in respect of any loss that it has incurred (or any failure of the other party) to the extent that it has already been compensated in respect of that loss or failure pursuant to this Agreement, the [Licence & Ground Lease] or otherwise.
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27 Boards should note that the effect of the sole remedy provisions contained in this standard form is that, to the extent the Payment Mechanism does not take account of a particular service failure, Boards will not be able to recover any loss or damages from Project Co. Project Co's lenders will be unwilling to accept a general right to sue for breach of contract if a service failure is not caught. The standard form payment mechanism in Part 18 of the Schedule and the standard output specifications published by the Department of Health are designed to be as all encompassing as possible, but Boards will need to ensure that this remains the case in the final version of the contract. See also footnote to Clause 29.6 (b).