The general approach of the courts is to apply the contract as it is written. If it says that a substantial failure is x then, almost certainly, that is what the court will hold to be the case. As Neil says, there will be some overlay of facts. Importantly, that description plays both ways and if it is 2 below and 1 above throughout the entire service period that would not then be a substantial failure under this contract.
Agree with Neil on 2 and 3 and emphasise his point on telling the parties what he is doing rather than leaving a big black hole on such a critical issue.
Agree with Neil on 2 and 3 and emphasise his point on telling the parties what he is doing rather than leaving a big black hole on such a critical issue.