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RESTRICTIONS ON CONTRACTIUAL DUTIES (FORCE MAJEURE)
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1. For the purpose of this Contract, the term “Force Majeure” shall mean any event or circumstance, or any combination of events and/or circumstances, the occurrence of which is beyond the control of, and could not have been avoided by actions which might reasonably be expected to be taken by, the affected Party (hereinafter the “Affected Party”) acting with the Standard of a Reasonable and Prudent Operator and impedes or prevents the ability of the Affected Party to perform some or all of its obligations hereunder and further that occurrence of such an obstacle was unpredictable at the time when the Affected Party undertook to perform such obligation. Subject to the satisfaction of the requirements of the previous sentence of this Clause, the Force Majeure shall include, but not be limited to:
a) natural disaster (such as earthquake), war (occupation), terrorist attack, governmental authority action, and/or state enterprizes and/or natural monopolies, if their activity affects or connected with the activity of the Parties of this Agreement and/or their affiliated companies;
b) fire, explosion, breakage or breakdown of or accidents to the major pipelines, railways, highways, etc.;
c) legal or illegal strikes;
d) events resulting in the declaration or continuation or implementation of an emergency situation announcement by a relevant governmental authority in relation to the energy supply to the extent applying to the System Operator and on amendment of such acts, as amended or, upon replacement, the relevant provision(s) of applicable law having the same effect, and relevant implementing regulation.
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2. Not with standing anything to the contrary provided in this Contract, and regardless of satisfaction of any or all of the requirements of this Clause of this Contract, none of the following events or circumstances, or any combination of following events and/or circumstances shall constitute Force Majeure:
i) any event or circumstance, the occurrence or existence of which is due to a negligent act or omission, breach of an Contract, violation of law, violation of terms of a regulatory approval or similar wrongful act or omission of a Party or of a Party’s employees, directors, subcontractors or agents;
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ii) change of economic, market, monetary or fiscal circumstance, which renders compliance with the terms of this Contract uneconomic or less financially viable;
iii) lack of financial resources or available funds or similar financial predicament, or an event the occurrence or existence of which is due to the financial inability of a Party to pay any amount which a prudent and financially sound entity in similar circumstances would reasonably be expected to pay, to avoid or discontinue such event;
iv) lack of goods or resources at the Party’s disposal or on the relevant market place regarding the Delivery Point, or an event upon which the occurrence or existence is due to the inability of a Party to deliver any amounts of goods or provide services which a prudent and economically sound entity in similar circumstances would reasonably be expected to deliver, to avoid or discontinue such event.
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3. So far as, the Affected Party is prevented from performing its obligations under the Contract and other respective Contracts, the Contract shall remain in force but the Affected Party shall be released from its duty to perform its obligations, provided, however, that it fulfills its obligations under para 4 of this article of the Contract. The obligation of the other Party under the Contract which corresponds to the obligation of the Affected Party shall also be suspended.
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4. Upon occurrence of an event of Force Majeure in respect of the Affected Party:
a) The Affected Party shall immediately (i) notify the other Party in writing (the initial notice may be given by phone provided that a proper written notification is given as soon as possible) specifying the matters constituting the Force Majeure together with such evidence in verification thereof as it can reasonably give and specifying the period for which it is estimated that the prevention or delay will continue, and (ii) within 15 Days upon Force Majeure occurrence provide the other Party with necessary documentary evidence from the Ukrainian Chamber of Commerce and Industries. This notification obligation shall also apply in case of an imminent threat of the Force Majeure; and
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b) the Affected Party shall discuss and agree in good faith with the other Party alternative means of performance of its obligations under this Contract; and
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c) if the Force Majeure continues for a period of two months or more following notification and the Parties have not agreed on other solutions, the (i) Buyer (if the Affected Party is the Seller) or (ii) the Seller (if the Affected Party is the Buyer) may terminate this Contract by notifying the other Parties at least 30 days in advance, in which case the Termination Amount shall not apply. Such notification shall be of no effect if the Affected Party resumes full performance of its obligations under this Contract before the expiry of the notice period;
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d) immediately upon the event of the Force Majeure ceasing to have effect, the operation of this Contract shall continue;
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e) the Party affected by the Force Majeure shall, immediately upon the event of the Force Majeure ceasing to have effect, notify the other Party in writing of such fact; and
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f) the Affected Party shall, acting according to the Standard of a Reasonable and Prudent Operator, make all reasonable endeavours to mitigate the impact of the Force Majeure.
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