43. RELIEF EVENTS
43.1. Without prejudice to clause 22 (Emergencies) and clause 31 (Business Continuity) if and to the extent that a Relief Event:-
43.1.1. is the direct cause of a delay in the Service Transfer Date; and/or
43.1.2. adversely affects the ability of the either party to perform any of its obligations under this Agreement,
then that party (referred to in this clause 43 as the "Relevant Party") is entitled to apply for relief from any rights of the other party (referred to in this clause 43 as the "Other Party") arising under clause 49 (Practical Remedies and Persistent Breach), Clause 52 (Termination on Authority Default) [and its obligations under this Agreement].
43.2. To obtain relief, the Relevant Party must:-
43.2.1. as soon as is practicable, and in any event within fourteen (14) Business Days after it became aware that the Relief Event has caused or is likely to cause delay and/or adversely affect the ability of the Relevant Party to perform its other obligations give to the Other Party a notice of its claim for relief from its obligations under the Agreement, including full details of the nature of the Relief Event, the date of occurrence and its likely duration;
43.2.2. within fourteen (14) Business Days of receipt by the Other Party of the notice referred to in clause 43.2.1, give full details of the relief claimed; and
43.2.3. demonstrate to the reasonable satisfaction of the Other Party that:-
a) the Relevant Party and its Sub-Contractors could not have avoided such occurrence or its consequences by steps which they might reasonably be expected to have taken, without incurring material expenditure;
b) the Relief Event directly caused the delay and/or adversely affected the ability of the Relevant Party to perform its other obligations; or
c) the time lost and/or relief from the obligations under the Agreement claimed could not reasonably be expected to be mitigated or recovered by the Relevant Party acting in accordance with Good Industry Practice, without incurring material expenditure;
d) the Relevant Party is using reasonable endeavours to perform or resume performance of its obligations under the Agreement; and
e) (if the Relevant Party is the Service Provider) the Service Provider is, where relevant, implementing the Business Continuity Plans as required by clause 31.
43.3. In the event that the Relevant Party has complied with its obligations under clause 43.2, then:-
43.3.1. in the case of a delay, the Service Transfer Date shall be postponed by such time as shall be reasonable for such a Relief Event, taking into account the likely effect of delay; and/or
43.3.2. subject to the Authority's rights under clause 43.7, the Other Party shall not be entitled to exercise its rights to terminate the Agreement under clause 49 (Practical Remedies and Persistent Breach), clause 50.1.2 (Termination on Service Provider Default incapable of Remedy) or clause 52 (Termination on Authority Default) (as appropriate); [and/or
43.3.3. subject to clause 43.10 below, the Other Party shall give such other relief as is reasonable for the particular Relief Event.]
43.4. In the event that information required by Clause 43.2 above is provided after the dates referred to in that paragraph, then the Relevant Party shall not be entitled to any relief during the period for which the information is delayed.
43.5. Each party shall notify the other if at any time it receives or becomes aware of any further information relating to the Relief Event, giving details of that information to the extent that such information is new or renders information previously submitted materially inaccurate or misleading.
43.6. If the parties cannot agree the extent of the relief required, or the Other Party disagrees that a Relief Event has occurred or that the Relevant Party is entitled to relief under this clause 43, the matter shall be resolved in accordance with the Dispute Resolution Procedure.
43.7. If, as a consequence of a Relief Event, the Provider is prevented from providing all or a substantial part of the Services for a continuous period of more than 40 Business Days, then the Authority may serve a notice terminating the Agreement.
43.8. Notwithstanding, and without prejudice to, the other provisions of this clause 43, if the Relevant Party believes its obligation to use all reasonable endeavours to continue to perform, or resume the performance of, its obligations during a Relief Event would necessitate the allocation of levels of expenditure or other resources disproportionate to any benefit likely to be achieved, it may raise the matter in writing with the Other Party and the parties shall enter good faith discussion and/or negotiations to determine what action it is reasonable for the Relevant Party to be required to undertake given all the prevailing circumstances.
43.9. The Relevant Party shall notify the Other Party immediately of the cessation of the Relief Event.
43.10. [50Nothing in clause 43.5 shall affect any entitlement of the Authority to make deductions or any deductions made as a result of the operation of the Payment Mechanism during the period in which the Relief Event is subsisting.]
43.11. If a Relief Event leads to the Service Provider claiming relief under this clause 43, the Service Provider shall advise the Authority of any alternative actions involving additional expenditure which the Authority may wish to consider in order to alleviate the consequences of the Relief Event. The Authority shall have complete discretion to consider and agree to such alternative actions and, if it deems them desirable, may issue written instructions to the Service Provider to undertake such alternative actions in accordance with the Change Protocol.
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50 SoPC4 drafting; if termination provisions are linked to deductions made or the accumulation of performance points, the performance regime should ensure that deductions/points occurring as a direct result of the Relief Event are not taken into account in termination