44.  FORCE MAJEURE

44.1.  No party shall be entitled to bring a claim for a breach of obligations under this Agreement by the other party or incur any liability to the other party for any losses or damages incurred by that other party to the extent that a Force Majeure Event occurs and it is prevented from carrying out obligations by that Force Majeure Event.  For the avoidance of doubt, the Authority shall not be entitled to terminate this Agreement for a Service Provider Default if a Service Provider Default arises from a Force Majeure Event (but without prejudice to clauses 44.5 or 44.7 below)

44.2.  Nothing in clause 44.1 above shall affect any entitlement to make deductions or any deductions made as a result of Schedule 4 (Payment Mechanism) in the period during which the Force Majeure Event is subsisting.

44.3.  On the occurrence of a Force Majeure Event, the Affected Party shall notify the other party as soon as practicable.  The notification shall include details of the Force Majeure Event, including evidence of its effect on the obligations of the Affected Party and any action proposed to mitigate its effect.

44.4.  As soon as practicable following such notification, the parties shall consult with each other in good faith and use all reasonable endeavours to agree appropriate terms to mitigate the effects of the Force Majeure Event and facilitate the continued performance of this Agreement.

44.5.  If no such terms are agreed on or before the date falling [one hundred and twenty (120)] Business Days after the date of the commencement of the Force Majeure Event and such Force Majeure Event is continuing or its consequence remains such that the Affected Party is unable to comply with its obligations under this Agreement for a period of more than [one hundred and eighty (180)] Business Days, then, subject to clause 44.7 below, either party may terminate this Agreement by giving thirty (30) Days' written notice to the other party.

44.6.  If this Agreement is terminated under clause 44.5 above or clause 44.7 below

44.6.1.  compensation shall be payable by the Authority in accordance with clause x (Compensation on Termination for Force Majeure); and

44.6.2.  the Authority may require the Service Provider to transfer its title, interest and rights in and to any Exclusive Assets to the Authority in accordance with clause 29.2.3.

44.7.  If the Service Provider gives notice to the Authority under clause 44.5 above that it wishes to terminate this Agreement, then the Authority has the option either to accept such notice or to respond in writing on or before the date falling ten (10) Business Days after the date of its receipt stating that it requires this Agreement to continue.  If the Authority gives the Service Provider such notice, then:

44.7.1.  the Authority shall pay to the Service Provider the Payment from the day after the date on which this Agreement would have terminated under clause 44.5  as if the Services were being fully provided; and

44.7.2.  this Agreement will not terminate until expiry of written notice (of at least thirty (30) Days) from the Authority to the Service Provider that it wishes this Agreement to terminate.

44.8.  The parties shall at all times following the occurrence of a Force Majeure Event use all reasonable endeavours to prevent and mitigate the effects of any delay and the Service Provider shall at all times during which a Force Majeure Event is subsisting take all steps in accordance with Good Industry Practice to overcome or minimise the consequences of the Force Majeure Event.  The Service Provider shall immediately implement the Business Continuity Plan in accordance with clause 31.

44.9.  The Affected Party shall notify the other party as soon as practicable after the Force Majeure Event ceases or no longer causes the Affected Party to be unable to comply with its obligations under this Agreement.  Following such notification this Agreement shall continue to be performed on the terms existing immediately prior to the occurrence of the Force Majeure Event.