29.6 The provisions of Clauses 29.7 to 29.12 (inclusive) shall apply if:
(a) the Board, acting reasonably, considers that a breach by Project Co of any obligation under this Agreement:
(i) may create an immediate and serious threat to the health or safety of any user of the Facilities; or
(ii) may result in a material interruption in the provision of one or more of the Services; or
(iii) is prejudicial to the ability of the Board to provide Clinical Services to a material degree; or
(b) Project Co has, in relation to any Service, accrued more than the number of Service Failure Points in any one month rolling period (to avoid doubt, comprising the then previous thirty (30) days) listed against that Service in [specify where in Performance Monitoring System this is set out]72; or
(c) Project Co is not in breach of its obligations as described in Clause 29.6(a) and (b), but the Board considers the circumstances constitute an emergency.73
29.7 In any of the circumstances set out in Clause 29.6, the Board, acting reasonably, may (without prejudice to its rights under Clause 44 (Project Co Events of Default) or any other express rights under this Agreement) either:
(a) if it considers that there is sufficient time and that it is likely that Project Co will be willing and able to provide assistance, require Project Co by written notice to take such steps as the Board considers necessary or expedient to mitigate or rectify such state of affairs and Project Co shall use its best endeavours to comply with the Board's requirements as soon as reasonably practicable; or
(b) if it considers there is not sufficient time, or that Project Co is not likely to be willing and able to take the necessary steps, take such steps as it considers to be appropriate (either itself or by engaging others to take any such steps) to ensure performance of the relevant Services to the standards required by this Agreement (or as close as possible to those standards as the circumstances permit and, in any event, in accordance with Good Industry Practice).
29.8 If:
(a) Project Co does not confirm, within ten (10) Business Days of a notice served pursuant to Clause 29.7(a) (or such shorter period as is appropriate in the case of an emergency), that it is willing to take such steps as are referred to in Clause 29.7(a); or
(b) Project Co fails to take the steps notified to it by the Board pursuant to Clause 29.7(a) within such time as the Board, acting reasonably, shall think fit,
then (without prejudice to Clause 29.7(b)) the Board, acting reasonably, may itself take or engage others to take such steps as it considers appropriate.
29.9 Where the Board considers it to be necessary or expedient to do so, the steps which the Board may take pursuant to this Clause shall include the partial or total suspension of the right and obligation of Project Co to provide the relevant Services to the Board but only for so long as the circumstances referred to in Clauses 29.6(a) or 29.6(c) subsist or, in the circumstances set out in Clause 29.6(b), until such time as Project Co shall have demonstrated to the reasonable satisfaction of the Board that it will perform (and is capable of performing) its obligations in respect of the relevant Services to the required standard.
29.10 If the Board either takes steps itself or requires Project Co to take steps in accordance with this Clause as a result of the circumstance referred to in Clause 29.6(c):
(a) the Board shall indemnify and keep indemnified Project Co at all times from and against all additional direct reasonable costs, losses, expenses or damages suffered or incurred in relation to undertaking such steps over and above those that would otherwise have been incurred in the proper performance of Project Co's obligations under this Agreement; and
(b) any costs incurred by the Board in taking such steps or requiring Project Co to take such steps shall be borne by the Board.
29.11 To the extent that the parties shall agree, or it shall be determined in accordance with Part 26 of the Schedule (Dispute Resolution Procedure), that the Board was not reasonable in requiring Project Co to take such steps (or in taking such steps itself) as are referred to in this Clause 29, then the Board shall indemnify and keep indemnified Project Co at all times from and against any costs, losses, expenses or damages (over and above those that would otherwise have been incurred by Project Co in the proper performance of its obligations under this Agreement) that are directly and reasonably incurred by Project Co in complying with those requirements of the Board as are agreed or determined not to be reasonable. To avoid doubt, it is acknowledged that Project Co has no right to require determination before taking any such action that the Board may specify; only subsequently may it refer any dispute for resolution to determine if the Board was reasonable in requiring Project Co to take such steps.
29.12 Subject to Clauses 29.10 and 29.11:
(a) any costs or expenses incurred by Project Co in taking such steps as are required by the Board pursuant to Clause 29.7(a) shall be borne by Project Co;
(b) Project Co shall reimburse the Board for all reasonable costs, losses, expenses or damages incurred by it in relation to taking the steps, or engaging others to take the steps, referred to in Clauses 29.7 and 29.8; and
(c) the Board shall be entitled to deduct any such amount from any amount payable to Project Co under the provisions of this Agreement.
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72 This is intended to cover a situation where very poor performance in any service is provided over a relatively short time period requiring the Board to step in to such service. The standard form contains sole remedy provisions. This provision gives the Board an additional right to step in and rectify the problem itself if a sufficient number of Service Failure Points have been accumulated. This should be seen as a "last resort" mechanism for the Board and the threshold should be set accordingly.
73 The term "emergency" is used here in a broad sense and is intended to cover extraordinary clinical circumstances or "major incidents" where, in exceptional situations, the scope or nature of the assistance required from Project Co will be beyond that envisaged in the Board's Service Level Specifications. In such a situation, the Board must be free to take action (albeit at its own cost) to ensure that its clinical services can be provided.