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:
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.
Exclusion Clauses. 16 PRIVITY 17 DISCHARGE 18 DISCHARGE BY PERFORMANCE 18 DISCHARGE BY AGREEMENT 20 TERMINATION BY FAILURE OF A CONTINGNET CONDITION 20 TERMINATION FOR BREACH 21 DISCHARGE FOR DELAY 23 DISCHARGE BY REPUDIATION 24 DISCHARGE BY FRUSTRATION 25 PROCESS AND EFFECTS OF TERMINATION 26 PROCESS OF TERMINATION 26 EFFECTS OF TERMINATION 27 FORMATION ELEMENTS • Agreement offer and acceptance • Consideration benefit and detriments • Intention to create legal relations • Certainty of the terms CERTAINTY ELEMENTS - Sufficiently complete (all essential term presented in offer): Hall v Busst - Sufficient certain and clear (words can be given meaning for court to enforce): Upper Hunter Council - No illusory promises (promise cannot be coupled with unfettered discretion as to whether to perform): Placer v Cth Relationship Between the 4 Requirements of Formation - Offer and certainty à an offer must be certain in its language in order to allow the offeree to simply state ‘I accept’ for a contract to exist - Illusory promise and consideration à if not enough consideration is promised, then it is an illusory promise and does not provide good consideration COMPLETENESS à Have parties reached agreement on the essential terms? à Are the terms of the contracts sufficiently complete? - Essential terms must include parties, subject matter, and price or else a contract fails for uncertainty: Hall v Busst - As long as all essential terms are complete, the court would be comfortable to imply the remaining terms - Although PRICE IS AN ESSENTIAL TERM that must be complete without the interference of the courts, this principle does not extend to the sale of goods: Sale of Goods Act s 13(2) o If price hasn’t been set, it is sufficiently certain for a 3rd party to use a specific formula or infer a reasonable price according to circumstances o “Where the price is not determined [by the contract or a course of dealings] … the buyer must pay a reasonable price. What is a reasonable price is a question of fact dependent on the circumstances of each particular case.” o Most goods can be determined by a 3rd party based on market price, but the value of the real estate be determined by a 3rd party, as it is a more precise value therefore there is greater reluctance to impose a reasonable term on parties: Hall v Busst - If parties have an AGREEMENT TO AGREE or is SILENT on an essential term, the deliberate delay to settle it in a future agreement is incomplete and there is no enforceable contract, as a...
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 Clause incorporated if:
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. The Trust will not be liable for the death of or injury to any person attending the Gallery during the period of this agreement, or for any losses, claims, demands, actions, proceedings, damages, costs or expenses or other liability incurred by the Hirer in the exercise of the rights granted by the agreement, except where such death, injury or loss is due to the negligence of the Trust. The Trust will not under any circumstances accept responsibility or liability in respect of any damage to, theft or loss of any goods, articles or property of any kind brought into or left at the Gallery by the Hirer for his own purposes or by any other person, or left or deposited with any officer or employee of the Trust. The Trust will not be liable for any loss due to any breakdown of machinery, failure of supply of electricity, leakage of water, fire, government restriction or act of God which may cause the Gallery to be temporarily closed or the hiring to be interrupted or cancelled.
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 Privity Only a party that is part of the contract can xxx. Exce...
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.
Exclusion Clauses. Construing
