1. There was a legal case from a few years back where the judge said "you can deem a dog a cat but that doesn't make it so". However I follow your view that the contract does at least appear to attempt to define substantial failure, whether the courts would agree is anyone's guess and may turn on more on the facts. Without more information about the nature of the breach (i.e. how the performance targets operate and how far they were missed by) it's difficult to assess, I'd recommend you take some legal advice.
2. Simply put the Service Manager doesn't issue a termination certificate under clause 90.1, the contract doesn't require him to not accept the proposed termination notification like it does say with a compensation event notification. This said it would be sensible for him to write to both Parties telling them rather than leaving it hanging in the air.
3. Yes, either Party could commence adjudication to challenge the Service Manager's decision, there may be some timing constraints if W1 applies, but if W2 applies then the dispute can be at any time.
2. Simply put the Service Manager doesn't issue a termination certificate under clause 90.1, the contract doesn't require him to not accept the proposed termination notification like it does say with a compensation event notification. This said it would be sensible for him to write to both Parties telling them rather than leaving it hanging in the air.
3. Yes, either Party could commence adjudication to challenge the Service Manager's decision, there may be some timing constraints if W1 applies, but if W2 applies then the dispute can be at any time.