Exclusion Clauses. Notwithstanding anything expressed in or implied by this Agreement, to the extent permitted by law CBH will not be liable to the Customer for any and all Loss or Damage caused by the negligence, breach of contract, breach of statutory duty or any other legal or equitable obligation of CBH, or otherwise howsoever arising in connection with this Agreement from:
(a) any variance in any specification as to Varietal Purity from the actual Varietal Purity of Grain received or Outturned for the Customer;
(b) the presence, in any Grain received or Outturned for the Customer, at any level or concentration, of any Pesticide Residue Contamination, Corynetoxins Contamination, Microbial Contamination, Heavy Metal Contamination or Natural Toxicant Contamination; or
(c) the presence, in any Grain received or Outturned for the Customer, at any level or concentration of any Genetically Modified Organisms.
Exclusion Clauses. Notwithstanding anything expressed in or implied by this Agreement, to the extent permitted by law CBH will not be liable to the Customer for any and all Loss or Damage caused by the negligence, breach of contract, breach of statutory duty or any other legal or equitable obligation of CBH, or otherwise howsoever arising in connection with this Agreement from:
(a) any variance in any specification as to Varietal Purity from the actual Varietal Purity of Grain received or Outturned for the Customer;
(b) any information or advice provided by CBH in relation to whether the Outturning Quality Specifications are sufficient for any purpose including meeting any Grain quality requirements of the Customer or its customers;
(c) the presence, in any Grain received or Outturned for the Customer, at any level or concentration, of any Pesticide Residue Contamination, Corynetoxins Contamination, Microbial Contamination, Heavy Metal Contamination or Natural Toxicant Contamination; or
(d) the presence, in any Grain received or Outturned for the Customer, at any level or concentration of any Genetically Modified Organisms.
Exclusion Clauses. 10.1 Nothing in this Agreement shall exclude or restrict the Company’s liability for death or personal injury resulting from the negligence of the Company or its employees or sub-contractors or agents which arise out of or in connection with the provision of the Services or shall exclude or restrict the Company’s liability for fraudulent misrepresentation or other fraud.
10.2 Subject to clause 10.1, the following provisions set out the Company’s entire liability (including any liability for the acts and omissions of its employees, sub-contractors and agents) to the Customer in respect of any breach of the Company’s contractual obligations arising under this Agreement and any representations, statement or tortuous act or omission including negligence arising under or in connection with this Agreement.
10.3 Subject to clause 10.1, the Company shall not be liable to the Customer for loss of profits or of goodwill or for any business interruption or other economic or financial losses or for any type of special, indirect or consequential loss (including loss or damage, costs or expenses suffered by the Customer as a result of an action brought or claim made by a third party) even if such loss was reasonably foreseeable or the Company had been advised of the possibility of the Customer incurring the same.
10.4 Subject to clause 10.1, the Company’s entire liability in respect of any one claim or series of claims arising out of one cause shall not exceed the amount of the Company’s Charges for the provision of the Services, except as expressly provided in these Terms and Conditions.
Exclusion Clauses. Notwithstanding anything expressed in or implied by this Agreement, to the extent permitted by law CBH will not be liable to the Customer for any and all Loss or Damage caused by the negligence, breach of contract, breach of statutory duty or any other legal or equitable obligation of CBH, or otherwise howsoever arising in connection with this Agreement from:
(a) any variance in any specification as to Varietal Purity from the actual Varietal Purity of Bulk Wheat received or Outturned for the Customer;
(b) the presence, in any Bulk Wheat received or Outturned for the Customer, at any level or concentration, of any Pesticide Residue Contamination, Corynetoxins Contamination, Microbial Contamination, Heavy Metal Contamination or Natural Toxicant Contamination; or CBH_DMS_PROD-#946542-v6C:\Documents and Settings\36491\Application
(c) the presence, in any Bulk Wheat received or Outturned for the Customer, at any level or concentration of any Genetically Modified Organisms.
Exclusion Clauses. Generally means that the party admits it's liable – but there is this clause as a defence. Historically, there have been really big exclusion clauses. Statutes have been introduced to limit the exclusion clause Nowadays, the courts tend to assume there is statute to protect the consumer, therefore except in major commercial contracts, the main permitted use of exclusion clauses today is in relation to the breach of express contractual terms Main principles (Darlington Futures v Delco Australia): Exclusion clauses are to be interpreted in sensible, ordinary meaning, in light of the surroundings When there is ambiguity – read it contra-proferentum – read it against the person who is trying to protect themselves – courts lean towards making people liable Guidelines & rules of thumb The four corners rule: When a clause is very broad, you tend to interpret it in a way that is inside the contract – the exclusion clause doesn't apply outside the contract (City of Sydney v West) Deviation rule – old principle – comes from shipping cases and carrying goods for someone else. Exclusion clause works when you're following the agreed route, but not if you deviate from it. (Xxxxxx National Transport v May & Xxxxx) Canada SS Rules (from above): if a clause expressly excludes liability for negligence (or an appropriate synonym ) then effect is given to that. If not, ask whether the words are wide enough to exclude negligence and if there is doubt that is resolved against the one relying on the clause. If that is satisfied then ask whether the clause could cover some alternative liability other than for negligence, and if it can it covers that. HC has said that if a contract states "The following terms will cause termination, that's fine – but HC still determines substantial damages (Shevill v Building Board ) Xxxxxx J stated, dissenting, in Xxxxxx – Before applying the parol evidence rule it must be determined whether the parties have agreed that the document embodies the bargain Main Principles for Parol Evidence Rule: First – meaning of the words is the meaning a reasonable person in the position of the party to whom the words are addressed would place on them Second – In a commercial situation, a court will stive to achieve a commercially sensible concultion Third – extrinsic evidence is not generally admissalbe in the interpretation Evidence of the factual matrix is not regulated by the parol evidence rule Only a party that is part of the contract can xxx. Exception – ...
Exclusion Clauses. Terms that seek to exclude or limit a legal liability that would otherwise exist - Common to exclude liability for representations & limiting amount of damages payable
a) be assumed by a person to be a contractual document Xxxxxx v Xxxxxx (pg.125)
b) reasonable steps taken to give the recipient notice of the existence of the clause c). steps taken before/when contract was made Meaning must be clear and unambiguous (contra proferentem – ambiguous meanings will be interpreted contrary to the interests of person who benefits from it) “read strictly & contra preferentum in case of ambiguity” Handbury v Xxxxx (pg.125) Sydney Corporation v West (pg.126)
3. IMPLIED TERMS BY LAW
Exclusion Clauses. Construing
Exclusion Clauses. 15.1 Subject to the terms of clause 12, save as expressly otherwise provided in this Agreement all representations, warranties and conditions express or implied statutory or otherwise in respect of the Assets sold hereunder are expressly excluded including without limitation, warranties and conditions as to quiet possession, merchantable quality, fitness for purpose, and description and (subject to Section
Exclusion Clauses. 16 PRIVITY 17 DISCHARGE 18 PROCESS AND EFFECTS OF TERMINATION 26
Exclusion Clauses. The exclusion circumstances include force majeure as set forth in provisions of Section 2913 (2) Civil Code, as amended. A force majeure case includes any obstacle that had occurred independently on the will of the liable party that prevents the liable party from meeting its obligations, if it cannot be reasonably deemed that the liable party could overcome such obstacle or avert its consequences or that it could have anticipated such obstacle at the time when this Contract was concluded. No responsibility of Contracting Parties is excluded if an obstacle occurred at the time when the liable party was in default with its supplies or if an obstacle was incurred due to the economic situation of the liable party or if the obstacle incurred could not have influenced provably and significantly the performance under this Contract. The Contracting Party claiming force majeure is obliged to notify the other Contracting Party immediately in writing (no later than 10 calendar days from the occurrence of force majeure) defining the nature of the encumbrance that is preventing or will prevent it from performing its supplies, the expected period of duration of the obstacle and its consequences. The liable party must take all available actions to moderate the impacts of non-performance of its contractual obligations. The Contracting Party claiming force majeure is also obliged to notify the other Contracting Party immediately in writing about the termination of a force majeure event and document it with written evidence no later than within 10 calendar days after the force majeure event is over or after the obstacles preventing the party from meeting its liabilities are remedied. The other Contracting Party is obliged to confirm in writing without undue delay the reception of such notification. Should the effects of a force majeure event last demonstrably longer than 3 months and should the effects of a force majeure event demonstrably prevent any of the Contracting Parties from performing its liabilities under this Contract, both Contracting Parties have the right to withdraw from this Contract or agree on extended delivery terms. Similarly, the Contracting Parties may withdraw from a PPC in case that a force majeure event preventing the liabilities under such PPC be met lasts more than 3 months. Force majeure excludes the enforcement of any contractual penalties against the Contracting Party affected by force majeure.
