273 ENERGY LAW parties, the bankruptcy estate will not be able to cherry-pick advantageous individual contracts and terminate the ones which are onerous for the bankrupted party. Primary Obligations and Remedies Under the General Agreement, the primary obligations arising out of Individual Contracts are delivering and accepting the delivery of the agreed capacity in accordance with the delivery schedules agreed between the parties. In this respect, accepting the delivery is defined as a separate obligation in the General Agreement. Provided that failure to deliver or accept agreed electricity capacity is not attributable to a force majeure or to the other party’s failure to perform its obligations, the party who failed to perform its obligation will be liable to the other party. The General Agreement provides specific calculation methods for failure to deliver or failure to accept the delivery of electricity: • In the event of failure to deliver by the seller, the seller will be responsible for the difference between the market price and the contract price for the undelivered quantity of electricity. • In the event of failure to take delivery by the buyer, the buyer will be responsible against the seller for the difference between the contract price and the market price for the nonaccepted quantity of electricity. Additionally, the breaching party’s liability will be increased by additional transmission costs and other verifiable costs reasonably incurred by the non-defaulting party as a result of the breaching party’s failure. Section §9 of the General Agreement provides a remedy for breaches of payment obligations or obligations to provide security. According to this provision, if one of the parties fails to make a payment due to the other party or if it does not comply with the performance assurance obligations under the General Agreement, the non-defaulting party may suspend all further deliveries of electricity by giving a three business days’ notice to the defaulting party until it receives the required assurance or payment of its receivables.
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