60.1 The Parties shall cooperate in the application of the remedies provided for in this Section and shall apply such remedies in a manner that is commensurate to the seriousness of the breach in question, with a view to preserving, as much as possible, the Parties’ ongoing relationship and achieving the purpose of this Agreement.

60.2 Unless a Force Majeure Event takes place, a Party failing to comply with any obligation in this Agreement is in breach of this Agreement.

60.3 Aggrieved Party’s duty to mitigate breach: Where a Party (the Aggrieved Party) becomes aware that another Party (the Breaching Party) is or will be in breach of one or more of its obligations under this Agreement, the Aggrieved Party shall notify the Breaching Party in writing and shall take all reasonable measures to minimize and mitigate the effects of the breach. The Aggrieved Party shall be entitled to recover from the Breaching Party any reasonable expenses or difference in value incurred in taking measures in mitigation in accordance with this Section.

60.4 Breaching Party’s right to prevent or cure breach: Where the Breaching Party has been notified or otherwise becomes aware that it is or will be in breach of one of more of its obligations under this Agreement, it shall immediately take all reasonable measures at its own cost to prevent or cure the breach [as soon as practicably possible]/[within [insert number] days], including by;

(a) bringing any aspect of the Project Operations that are non-compliant with this Agreement or the Applicable Law into compliance with same;

(b) replacing any non-conforming goods or services with goods or services which conform with the requirements of this Agreement;

(c) modifying or correcting any non-conforming production method or other process required by this Agreement, including in accordance with any specific instructions issued by the Aggrieved Party or any relevant certification body; and

(d) [insert other possible cures for breach based on the specificities of the Project or delete the words “including by” and do not provide an illustrative list of cures.]

60.5 Aggrieved Party’s right to take corrective action: Where the Breaching Party does not or cannot cure the breach in accordance with Section 60.4, or the Aggrieved Party has a legitimate interest in refusing cure, and the breach does not arise from the Aggrieved Party’s failure to comply with its obligations under this Agreement or from the Aggrieved Party’s obstruction of the Breaching Party’s performance of its obligations, the Aggrieved Party may take such corrective action as is reasonable, necessary, and commensurate to the seriousness of the breach in question, including:

(a) granting additional time for the Breaching Party to complete performance of one or more of its obligations under this Agreement;

(b) withholding or delaying counter-performance of one or more of the Aggrieved Party’s obligations under this Agreement, including making a reasonable and proportionate adjustment to payments owing under this Agreement;

(c) engaging in a substitute transaction, in a timely fashion, for the procurement of goods or services failed to be provided by the Breaching Party in accordance with this Agreement;

(d) requesting the Breaching Party to engage in good faith in a Non-Periodic Review with a view to negotiating necessary variations to the terms of this Agreement, including an adjustment of the Rental Fee or any other payments owing under the Agreement in light of the Breaching Party’s non-performance, in accordance with Section 56;

(e) requesting specific performance of an obligation under this Agreement, in accordance with the Applicable Law; and

(f) [insert any other specific corrective actions as may be applicable to the project].

60.6 The Aggrieved Party shall be entitled to recover from the Breaching Party any reasonable expenses or difference in value incurred by the Aggrieved Party in taking corrective actions in accordance with Section 60.5.

60.7 Any corrective action taken by the Aggrieved Party in accordance with this Section shall be without prejudice to the Aggrieved Party’s entitlement to pursue any other recourse or remedy under this Agreement or under the Applicable Law.

60.8 Termination upon failure to cure or correct: Where the Breaching Party has committed a breach of this Agreement that is not a Material Breach, and an attempt to cure the breach by the Breaching Party, or corrective action by the Aggrieved Party, has failed to cure, prevent, or correct the breach within [60][90]/[insert number] days of Notice of the breach having been provided to the Breaching Party, the Aggrieved Party may, with [30]/[60]/[insert number] days notice in writing to the Breaching Party, terminate this Agreement.

60.9 Termination upon Material Breach: Where the Breaching Party commits a Material Breach of this Agreement, the Aggrieved Party may terminate the Agreement with 14 days Notice to the Breaching Party.

60.10 The following events are deemed to be a Material Breach:

(a) the Company significantly and persistently failing to use the Project Area in accordance with the grant of rights provided in Section 18.

(b) the Company significantly and persistently failing to comply with the Applicable Law relating to human rights, labour protections, public health, or the environment, the terms of any Applicable Licence, or of the provisions of the ESMP, as the same may be revised or changed from time to time in accordance with this Agreement.

(c) the Company failing to make a payment of the Rental Amount, in accordance with Section 19, and/or a payment for a Water-Use Permit, in accordance with Section 41, within sixty (60) days after the Grantor [or the Authority] gives a Notice of the failure to make said payment;

(d) cancellation or non-renewal of any Applicable Permit due to a failure by the Company to comply with the terms and conditions of that Applicable Permit, in accordance with Section 10;

(e) the Company committing a Material Breach of a Community Development Agreement in accordance with Section 38;

(f) the Company dissolving, liquidating, becoming insolvent, filing for bankruptcy, making an assignment for the benefit of creditors, petitioning or applying to any tribunal for the appointment of a trustee or receiver for itself, or commencing any proceedings concerning itself under a law concerning bankruptcy, or insolvency other than for the purposes of corporate reorganization;

(g) any one or more of the representations, warranties or undertakings provided by the Company in accordance with Section 9 is or proves to have been incorrect or misleading in any material respect when made or deemed to have been made, and such incorrect or misleading representation or warranty having a material adverse effect on any Party’s ability to perform its obligations under this Agreement; and

(h) The occurrence of an Unauthorized Change of Control event in accordance with Section 64.

(i) any other breach of the Agreement that has the effect of substantially depriving the Aggrieved Party of what it was entitled to expect under the Agreement or that is intentional or reckless or is such that the Aggrieved Party has no reason to believe that any performance will be forthcoming.

60.11 Termination by the Company: The Company may terminate this Agreement without prejudice to any other rights it may have:

(a) without cause at any time, with 365 days written Notice; or

(b) if the Grantor [or Authority] fails to correct a breach of this Agreement in accordance with paragraph 60.8 (h).

(c) in the case of a continuous condition of Force Majeure existing for a period of 1 year or more, in accordance with paragraph 59.6.

60.12 Contractual remedies preserved: The rights provided in this Section are in addition to, and not in derogation of, any remedial right to damages which any Party may have pursuant to the Applicable Law for a breach by another Party to this Agreement.

For more information: See generally Smaller & Brewin, 2018, Section 9 (Remedies); ISLP & CCSI 2016, Section 2.23 (Termination); Szoke-Burke et al., 2018, Sections 18 (Remedies: What Happens If the Company Breaches the Contract?) and 19 (Ending the Contract [Termination]); UNIDROIT & IFAD, 2021, Chapter 5.III (Remedies for Breach).