Common use of Exclusion of Claims in certain other Clause in Contracts

Exclusion of Claims in certain other. circumstances (a) Except to the extent that an Operational Constraint results from a breach by Aurizon Network of this Agreement or a Train Operations Agreement, any delays or cancellations of Train Services caused by or resulting from Operational Constraints shall not constitute a default by Aurizon Network of its obligations under this Agreement and Aurizon Network will not be liable for any Claims suffered or incurred by or made or brought by or against the End User as a result of or arising from the imposition of such an Operational Constraint. (b) Except as otherwise provided in this Agreement, Aurizon Network will not be liable for any delays, cancellation of Train Services or Claims suffered or incurred by or made or brought by or against the End User as a result of an Operator complying with a request by Aurizon Network in accordance with Clause 8.4(e) of the General Conditions of Contract of a Train Operations Agreement. (c) If Aurizon Network takes action in accordance with Clause 8.4(d)(i) of the General Conditions of Contract of a Train Operations Agreement, then Aurizon Network shall have no liability for any damage to or loss of freight caused by such actions. (d) If Aurizon Network conducts an inspection or audit under Clause 13 of the General Conditions of Contract of a Train Operations Agreement, Aurizon Network will be liable to the End User in respect of loss or damage (including damages for Consequential Loss) arising from the conduct of the inspection or audit if, and only if: (i) no reasonable person in Aurizon Network's position could have formed the view that the stated grounds for such inspection or audit existed; and (ii) the End User's loss or damage is not, and has not been, included in a claim under the relevant Train Operations Agreement, and provided that the End User must use all reasonable endeavours to mitigate the loss or damage arising from the conduct of the inspection or audit. Aurizon Network shall bear the burden of establishing that a reasonable person in its position could have formed that view.

Exclusion of Claims in certain other. circumstances (a) Except to the extent that an Operational Constraint results from a breach by by, or negligent act or omission of, Aurizon Network of this Agreement or a Train Operations AgreementDeed, any delays or cancellations of Train Services caused by or resulting from Operational Constraints shall will not constitute a default by Aurizon Network of its obligations under this Agreement and Aurizon Network will not be liable for any Claims suffered or incurred by or made or brought by or against the End User Access Holder as a result of or arising from the imposition of such an Operational Constraint. (b) Except as otherwise provided in this Agreement, Aurizon Network will not be liable for any delays, cancellation delays or cancellations of Train Services or Claims suffered or incurred by or made or brought by or against the End User Access Holder and the Access Holder must not make any Claim against Aurizon Network, its director and/or Aurizon Network’s Staff as a result of an Operator complying with a request by Aurizon Network in accordance with Clause 8.4(eclause 20.4(i) of the General Conditions of Contract of a Train Operations AgreementDeed. (c) If Aurizon Network takes action in accordance with Clause 8.4(d)(iclause 20.4(e) of the General Conditions of Contract of a Train Operations AgreementDeed, then Aurizon Network shall have has no liability for any damage to or loss of freight caused by such actions. (d) If Aurizon Network conducts an inspection will not be liable for any delays or audit under Clause 13 cancellations of Train Services or Claims suffered or incurred by or made or brought by or against the Access Holder as a result of the General Conditions exercise by Aurizon Network of Contract its rights under clause 23 of a Train Operations AgreementDeed, provided that Aurizon Network will be liable to complies with the End User in respect of loss or damage (including damages for Consequential Loss) arising from relevant provisions under the IRMP regarding conduct of the inspection an audit or audit if, and only if: (i) no reasonable person in Aurizon Network's position could have formed the view that the stated grounds for such inspection or audit existed; and (ii) the End User's loss or damage is not, and has not been, included in a claim under the relevant Train Operations Agreement, and provided that the End User must use all reasonable endeavours to mitigate the loss or damage arising from the conduct of the inspection or audit. Aurizon Network shall bear the burden of establishing that a reasonable person in its position could have formed that viewinspection.

Exclusion of Claims in certain other. circumstances (a) Except to the extent that an Operational Constraint results from a breach by Aurizon Network of this Agreement or a Train Operations Agreement, any delays or cancellations of Train Services caused by or resulting from Operational Constraints shall not constitute a default by Aurizon Network of its obligations under this Agreement and Aurizon Network will not be liable for any Claims suffered or incurred by or made or brought by or against the End User as a result of or arising from the imposition of such an Operational Constraint. (b) Except as otherwise provided in this Agreement, Aurizon Network will not be liable for any delays, cancellation delays or cancellations of Train Services or Claims suffered or incurred by or made or brought by or against the End User and the End User must not make any Claim against Aurizon Network, its director and/or Aurizon Network’s Staff as a result of an Operator complying with a request by Aurizon Network in accordance with Clause 8.4(eclause 22.6(j) of the General Conditions of Contract of a Train Operations Agreement. (c) If Aurizon Network takes action in accordance with Clause 8.4(d)(iclause 22.6(f) of the General Conditions of Contract of a Train Operations Agreement, then Aurizon Network shall have no liability for any damage to or loss of freight caused by such actions. (d) If Aurizon Network conducts an inspection will not be liable for any delays or audit under Clause 13 cancellations of Train Services or Claims suffered or incurred by or made or brought by or against the End User as a result of the General Conditions exercise by Aurizon Network of Contract its rights under clause 26 of a Train Operations Agreement, provided that Aurizon Network will be liable to the End User in respect complies with clause 26.5 of loss or damage (including damages for Consequential Loss) arising from the conduct of the inspection or audit if, and only if: (i) no reasonable person in Aurizon Network's position could have formed the view that the stated grounds for such inspection or audit existed; and (ii) the End User's loss or damage is not, and has not been, included in a claim under the relevant Train Operations Agreement, and provided that the End User must use all reasonable endeavours to mitigate the loss or damage arising from the conduct of the inspection or audit. Aurizon Network shall bear the burden of establishing that a reasonable person in its position could have formed that view.

Exclusion of Claims in certain other. circumstances (a) Except to the extent that an Operational Constraint results from a breach by Aurizon QRAurizon Network of this Agreement or a Train Operations Agreement, any delays or cancellations of Train Services caused by or resulting from Operational Constraints shall not constitute a default by Aurizon QRAurizon Network of its obligations under this Agreement and Aurizon QRAurizon Network will not be liable for any Claims suffered or incurred by or made or brought by or against the End User as a result of or arising from the imposition of such an Operational Constraint. (b) Except as otherwise provided in this Agreement, Aurizon QRAurizon Network will not be liable for any delays, cancellation of Train Services or Claims suffered or incurred by or made or brought by or against the End User as a result of an Operator complying with a request by Aurizon QRAurizon Network in pursuant toin accordance with Clause 8.4(e) of the General Conditions of Contract of a Train Operations Agreement. (c) If Aurizon QRAurizon Network takes action in underin accordance with Clause 8.4(d)(i) of the General Conditions of Contract of a Train Operations Agreement, then Aurizon QRAurizon Network shall have no liability for any damage to or loss of freight caused by such actions. (d) If Aurizon QRAurizon Network conducts an inspection or audit under Clause 13 of the General Conditions of Contract of a Train Operations Agreement, Aurizon QRAurizon Network will not be liable for any delays or cancellation of Train Services or Claims suffered or incurred by or made or brought by or against the End User as a result of the exercise by QR Network of its rights under Clause 13 of the General Conditions of Contract of the Train Operations Agreement provided QR Network complies with Clause 13.4(c) of the General Conditions of Contract of the Train Operations Xxxxxxxxx.xx liable to the End User in respect of loss or damage (including damages for Consequential Loss) arising from the conduct of the inspection or audit if, and only if: (i) no reasonable person in Aurizon Network's position could have formed the view that the stated grounds for such inspection or audit existed; and (ii) the End User's loss or damage is not, and has not been, included in a claim under the relevant Train Operations Agreement, and provided that the End User must use all reasonable endeavours to mitigate the loss or damage arising from the conduct of the inspection or audit. Aurizon Network shall bear the burden of establishing that a reasonable person in its position could have formed that view.

Exclusion of Claims in certain other. circumstances (a) Except to the extent that an Operational Constraint results from a breach by Aurizon QR Network of this Agreement or a Train Operations Agreement, any delays or cancellations of Train Services caused by or resulting from Operational Constraints shall not constitute a default by Aurizon QR Network of its obligations under this Agreement and Aurizon QR Network will not be liable for any Claims suffered or incurred by or made or brought by or against the End User as a result of or arising from the imposition of such an Operational Constraint. (b) Except as otherwise provided in this Agreement, Aurizon QR Network will not be liable for any delays, cancellation of Train Services or Claims suffered or incurred by or made or brought (d) by or against the End User as a result of an Operator complying with a request by QR Network in accordance with Clause 8.4(e) of the General Conditions of Contract of a Train Operations Agreement. If QR Network takes action in accordance with Clause 8.4(d)(i) of the General Conditions of Contract of a Train Operations Agreement, then QR Network shall have no liability for any damage to or loss of freight caused by such actions. If QR Network conducts an inspection or audit in accordance with Clause 13 of the General Conditions of Contract of a Train Operations Agreement, QR Network will not be liable for any delays or cancellation of Train Services or Claims suffered or incurred by or made or brought by or against the End User as a result of an Operator complying with a request the exercise by Aurizon QR Network in accordance with Clause 8.4(e) of the General Conditions of Contract of a Train Operations Agreement. (c) If Aurizon Network takes action in accordance with Clause 8.4(d)(i) of the General Conditions of Contract of a Train Operations Agreement, then Aurizon Network shall have no liability for any damage to or loss of freight caused by such actions. (d) If Aurizon Network conducts an inspection or audit its rights under Clause 13 of the General Conditions of Contract of a athe Train Operations Agreement, Aurizon QR Network will be liable to the End User in respect of loss or damage (including damages for Consequential Loss) arising from the conduct of the inspection or audit if, and only if: (i) , no reasonable person in Aurizon QR Network's position could have formed the view that the stated grounds for such inspection or audit existed; and (ii) the End User's loss or damage is not, and has not been, included in a claim under the relevant Train Operations Agreement, and provided that the End User must use all reasonable endeavours to mitigate the loss or damage arising from the conduct of the inspection or audit. Aurizon QR Network shall bear the burden of establishing that a reasonable person in its position could have formed that viewview provided QR Network complies with Clause 13.4(c) of the General Conditions of Contract of the Train Operations Agreement.

Exclusion of Claims in certain other. circumstances (a) Except to the extent that an Operational Constraint results from a breach by Aurizon Network of this Agreement or a Train Operations AgreementDeed, any delays or cancellations of Train Services caused by or resulting from Operational Constraints shall not constitute a default by Aurizon Network of its obligations under this Agreement and Aurizon Network will not be liable for any Claims suffered or incurred by or made or brought by or against the End User Access Holder as a result of or arising from the imposition of such an Operational Constraint. (b) Except as otherwise provided in this Agreement, Aurizon Network will not be liable for any delays, cancellation delays or cancellations of Train Services or Claims suffered or incurred by or made or brought by or against the End User Access Holder and the Access Holder must not make any Claim against Aurizon Network, its director and/or Aurizon Network’s Staff as a result of an Operator complying with a request by Aurizon Network in accordance with Clause 8.4(eclause 19.4(i) of the General Conditions of Contract of a Train Operations AgreementDeed. (c) If Aurizon Network takes action in accordance with Clause 8.4(d)(iclause 19.4(e) of the General Conditions of Contract of a Train Operations AgreementDeed, then Aurizon Network shall have no liability for any damage to or loss of freight caused by such actions. (d) If Aurizon Network conducts an inspection will not be liable for any delays or audit under Clause 13 cancellations of Train Services or Claims suffered or incurred by or made or brought by or against the Access Holder as a result of the General Conditions exercise by Aurizon Network of Contract its rights under clause 22 of a Train Operations AgreementDeed, provided that Aurizon Network will be liable to complies with the End User in respect of loss or damage (including damages for Consequential Loss) arising from relevant provisions under the IRMP regarding conduct of the inspection an audit or audit if, and only if: (i) no reasonable person in Aurizon Network's position could have formed the view that the stated grounds for such inspection or audit existed; and (ii) the End User's loss or damage is not, and has not been, included in a claim under the relevant Train Operations Agreement, and provided that the End User must use all reasonable endeavours to mitigate the loss or damage arising from the conduct of the inspection or audit. Aurizon Network shall bear the burden of establishing that a reasonable person in its position could have formed that viewinspection.