Exercise of access rights. (a) The Parties acknowledge and agree that: (i) the grant of the Access Rights to the End User in accordance with this Agreement does not entitle the End User to itself operate Train Services on the Nominated Network (unless it is also an Operator which it is entitled to nominate to use the Access Rights in accordance with this Clause 2.3); and (ii) the End User can only utilise the Access Rights by nominating an Operator from time to time, in accordance with Clause 2.3(b), to use Access Rights, allocated to that Operator by the End User (including pursuant to a variation of allocations pursuant to Clause 2.3(f)), under the terms of a Train Operations Agreement (and may nominate more than one Operator). (b) Subject to Clause 2.3(g), the End User may, from time to time, provided that it is not in material breach of any of its obligations under this Agreement, upon giving at least 30 days prior written notice to Aurizon Network and the relevant Operator, nominate an Operator to utilise all or part of the Access Rights by written notice to Aurizon Network which: (i) specifies the name, ABN, address and contact details of the Operator; (ii) specifies the Access Rights which the End User wishes to allocate to the Operator for the Operator to use in providing Train Services for the End User; (iii) specifies the first day and the last day of the period for which the Access Rights are to be allocated to the Operator; and (iv) is accompanied by either: (A) a Train Operations Agreement (in duplicate) in the form set out in Schedule 6 (or such other form as Aurizon Network and the Operator have agreed), duly executed by the Operator, which reflects in Schedule 1 the Access Rights which the End User wishes to allocate to the Operator; or (B) a statement identifying the Operator’s existing applicable Train Operations Agreement in respect of utilisation of the Access Rights under this Agreement and evidence that the Operator agrees to the relevant nomination, provided that at no time can the Access Rights allocated by the End User to any Operators exceed, in aggregate, the End User’s Access Rights under this Agreement.
Appears in 4 contracts
Samples: End User Access Agreement, End User Access Agreement, End User Access Agreement
Exercise of access rights. (a) The Parties acknowledge and agree that:
(i) the grant of the Access Rights to the End User in accordance with this Agreement does not entitle the End User to itself operate Train Services on the Nominated Network (unless it is also an Operator which it is entitled to nominate to use the Access Rights in accordance with this Clause 2.3); and
(ii) the End User can only utilise the Access Rights by nominating an Operator from time to time, in accordance with Clause 2.3(b), to use Access Rights, allocated to that Operator by the End User (including pursuant to a variation of allocations pursuant to Clause 2.3(f)), under the terms of a Train Operations Agreement (and may nominate more than one Operator).
(b) Subject to Clause 2.3(g), the End User may, from time to time, provided that it is not in material breach of any of its obligations under this Agreement, upon giving at least 30 days prior written notice to Aurizon Network and the relevant Operator, nominate an Operator to utilise all or part of the Access Rights by written notice to Aurizon Network which:
(i) specifies the name, ABN, address and contact details of the Operator;
(ii) specifies the Access Rights which the End User wishes to allocate to the Operator for the Operator to use in providing Train Services for the End User;
(iii) specifies the first day and the last day of the period for which the Access Rights are to be allocated to the Operator; and
(iv) is accompanied by either:
(A) a Train Operations Agreement (in duplicate) in the form set out in Schedule 6 (or such other form as Aurizon Network and the Operator have agreed), duly executed by the Operator, which reflects in Schedule 1 the Access Rights which the End User wishes to allocate to the Operator; or
(B) a statement identifying the Operator’s existing applicable Train Operations Agreement in respect of utilisation of the Access Rights under this Agreement and evidence that the Operator agrees to the relevant nomination, provided that at no time can the Access Rights allocated by the End User to any Operators exceed, in aggregate, the End User’s Access Rights under this Agreement.
(c) Notwithstanding any other provision in this Agreement, Aurizon Network is not obliged to accept, or act on, any nomination of an Operator by the End User under Clause 2.3(b) if that Operator is in material breach of any of its obligations under an existing Access Agreement or train operations agreement and unless Aurizon Network is satisfied that the Operator is:
(i) financially sound; and
(ii) otherwise capable of performing the obligations of the operator under a Train Operations Agreement.
(d) Aurizon Network shall, in respect of a nomination by the End User under Clause 2.3(b):
(i) within 10 Business Days of receiving the nomination, notify the End User and the relevant Operator whether it accepts or rejects the nomination;
(ii) subject to Clause 2.3(c), act reasonably in assessing the nomination;
(iii) where it decides to reject the nomination , provide reasons for the rejection in writing to the End User and the Operator and thereafter use its best endeavours to facilitate the resolution of any matter the subject of its reasons; and
(iv) where it accepts the nomination, promptly do all things reasonably required (including compliance with Clause 2.3(g) where applicable and amending the relevant Train Operations Agreement to the extent required) to ensure that any delay to Train Services is minimised to the extent practicable.
(e) If Aurizon Network accepts a nomination given under Clause 2.3(b) , within 10 Business Days of notifying the End User and Operator of its acceptance pursuant to Clause 2.3(d)(i), Aurizon Network must:
(i) where a Train Operations Agreement was provided in accordance with Clause 2.3(b)(iv)(A), execute both copies of the Train Operations Agreement and return one copy to the Operator; or
(ii) where a statement and evidence was provided in accordance with Clause 2.3(b)(iv)(B), vary the relevant Train Operations Agreement to include the right to operate Train Services utilising the Access Rights in respect of which the Operator was nominated, and provide notice of that variation to the Operator.
(f) The End User may, from time to time, upon giving at least 2 Business Days (or such other period of time as specified in the System Rules) prior written notice to Aurizon Network and each affected Operator:
(i) vary any nomination previously given by the End User under Clause 2.3(b) or this Clause 2.3(f) so as to vary either or both of the following:
(A) the Access Rights which the End User has allocated to the Operator (provided that at no time can the Access Rights allocated by the End User to any one or more Operators exceed, in aggregate, the End User’s Access Rights under this Agreement); or
(B) the period for which the Access Rights are to be allocated to the Operator (provided that the period for which Access Rights are allocated to the Operator cannot extend beyond the Termination Date), with Aurizon Network to comply with Clause 2.3(d) in respect of any such varied nomination, subject to being required to notify of its acceptance or rejection :
(C) where notice of the varied nomination is given prior to 1200 hours on the Wednesday before the Intermediate Train Plan which will apply at the time the variation commences is settled, within the lesser of 10 Business Days and the period remaining prior to the relevant Intermediate Train Plan being finalised (or such other period of time as specified in the System Rules); or
(D) where notice of the varied nomination is given after 1200 hours on the Wednesday before the Intermediate Train Plan which will apply at the time the variation commences is settled, before the next Daily Train Plan relevant to the Train services being reallocated is settled (or such other period of time as specified in the System Rules);
(ii) withdraw any nomination previously given by the End User under Clause 2.3(b) or this Clause 2.3(f). Where an Operator receives an increased allocation of Access Rights following a varied nomination in accordance with this Clause 2.3(f), and the date on which that variation commences is during the period covered by the then current Intermediate Train Plan, Aurizon Network will, for the purposes of clause 2.4(d)(vi) and 2.4(g) of Schedule 10 of the Train Operations Agreement (and any similar provision of applicable System Rules), agree to, and use its reasonable endeavours to procure the Infrastructure Service Providers agree to, the variations in the Daily Train Plain from the Intermediate Train Plain which are required to accommodate the additional Train Services of such an Operator corresponding to the increased allocation, provided such variations would not result in any existing Railway Operator's scheduled Train service/s not being met or a Planned Possession not being met.
(g) If at any time:
(i) the End User intends to:
(A) nominate an Operator to utilise all or part of the Access Rights under Clause 2.3(b); or
(B) vary a nomination previously given by the End User under Clause 2.3(b) pursuant to Clause 2.3(f); and the Train Services of the relevant Operator will have a Train Service Description different from that contemplated in Schedule 1; or
(ii) the End User otherwise wishes to vary the Train Services from the Train Service Description nominated in Schedule 1, then:
(iii) prior to nominating the Operator or varying the nomination, Aurizon Network and the End User must negotiate and agree any amendments to this Agreement (including any amendments to the Access Rights and the Base Access Charges) that may be necessary to reflect the Train Service Description of the Train Services to be operated by the relevant Operator for that part of the Access Rights to be allocated to that Operator;
(iv) [the End User must pay, or cause to be paid, to Aurizon Network any unpaid Adjustment Charges that, but for the nomination or variation, are or would have been payable by the Operator who provided Train Services corresponding to the Access Rights immediately prior to the relevant nomination or variation;
(v) the obligation of the End User under Clause 2.3(g)(iv) is a condition precedent to any amendments agreed between the Parties under Clause 2.3(g)(iii)]; and [Square bracketed text only to be included where End User is only paying TOP Charges]
(vi) no amendment to the Access Rights that results in the End User being granted increased rights to access the Nominated Network has any effect unless and until the End User and Aurizon Network have complied with Aurizon Network’s Access Undertaking (including with respect to the allocation of those increased Access Rights).
(h) If at any time:
(i) the Access Rights of the End User are reduced (by agreement or under Clause 4.1 or Clause 4.5), or relinquished or transferred (by agreement under Clause 4.2); and
(ii) as a result of such reduction, relinquishment or transfer of Access Rights the Access Rights sought to be allocated by the End User to any one or more Operators under this Clause 2.3 exceed, in aggregate, the End User’s Access Rights under this Agreement, (such excess being the Over-Allocation). then, unless the End User gives notice to Aurizon Network and each affected Operator in accordance with Clause 2.3(f) varying any nominations previously given under Clause 2.3(b) to eliminate the Over-Allocation, the End User will be deemed to have given a notice to Aurizon Network in accordance with Clause 2.3(f):
(i) if the End User has only nominated one Operator under Clause 2.3(b), reducing the Access Rights which the End User has allocated to the Operator under its Train Operations Agreement by the Over-Allocation; or
(ii) if the End User has nominated multiple Operators under Clause 2.3(b), reducing the Access Rights which the End User has allocated to each Operator under their respective Train Operations Agreements by a share of the Over-Allocation that is as closely as possible proportionate to the Train Services allocated to the Operator as a share of the total Train Services allocated to all Operators, and such reduction will be deemed to be accepted by Aurizon Network and will take effect on the date the reduction, relinquishment or transfer takes effect, with Aurizon Network providing written notice of the reduction to each affected Operator as soon as practicable..
(i) [If the End User wishes to or is deemed to vary or withdraw its allocation of Access Rights to an Operator in accordance with clause 2.3(f), or is deemed to vary or withdraw its allocation of Access Rights to an Operator in accordance with clause 2.3(h), the End User must pay to Aurizon Network any Adjustment Charges that, but for the said variation or withdrawal of the allocation of Access Rights are or would have been payable by the existing Operator under a Train Operations Agreement. The variation or withdrawal of the allocation of Access Rights in accordance with this clause 2.3 is subject to and conditional on the End User’s payment of the Adjustment Charges to Aurizon Network.]. [Paragraph (i) is deleted where the End User is paying all Access Charges]
Appears in 1 contract
Samples: End User Access Agreement
Exercise of access rights. (a) The Parties acknowledge and agree that::
(i) the grant of the Access Rights to the End User in accordance with this Agreement does not entitle the End User to itself operate Train Services on the Nominated Network Network; and (unless it is also an Operator which it is entitled to nominate to use the Access Rights in accordance with this Clause 2.3); and
(ii) the End User can only utilise the Access Rights by nominating an Operator from time to time, in accordance with Clause 2.3(b), to use Access Rights, allocated to that Operator by the End User (including pursuant to a variation of allocations pursuant to Clause 2.3(f)), under the terms of a Train Operations Agreement (and may nominate more than one Operator).
(b) Subject to Clause 2.3(g2.3(fg), the End User may, from time to time, provided that it is not in material breach of any of its obligations under this Agreement, upon giving at least 30 days prior written notice to Aurizon QRAurizon Network and the relevant Operator, nominate an Operator (for a period of not less than three months and comprised only of whole Months) to utilise all or part of the Access Rights by written notice to Aurizon QRAurizon Network which:
(i) specifies the name, ABN, address and contact details of the Operator;
(ii) specifies the Access Rights which the End User wishes to allocate to the Operator for the Operator to use in providing Train Services for the End User;
(iii) specifies the first day and the last day of the period for which the Access Rights are to be allocated to the Operator; and
(iv) is accompanied by either:
(A) a Train Operations Agreement (in duplicate) in the form set out in Schedule 6 (or such other form as Aurizon Network and the Operator have agreed), duly executed by the Operator, which reflects in Schedule 1 the Access Rights which the End User wishes to allocate to the Operator; or
(B) a statement identifying the Operator’s existing applicable Train Operations Agreement in respect of utilisation of the Access Rights under this Agreement and evidence that the Operator agrees to the relevant nomination, provided that at no time can the Access Rights allocated by the End User to any Operators exceed, in aggregate, the End User’s Access Rights under this Agreement.
(c) Notwithstanding any other provision in this Agreement, QRAurizon Network is not obliged to accept, or act on, any nomination of an Operator by the End User under Clause 2.3(b) if that Operator is in material breach of any of its obligations under an existing Train OperationsAccess Agreement or train operations agreement and unless QRAurizon Network is satisfied that the Operator is:
(i) financially sound; and
(ii) otherwise capable of performing the obligations of the operator under a Train Operations Agreement.
(d) Upon receipt of: Aurizon Network shall, in respect of a nomination by the End User under Clause 2.3(b):
(i) within 10 Business Days of receiving the nomination, notify the End User and the relevant Operator whether it accepts or rejects the nomination;
(ii) subject to Clause 2.3(c), act reasonably in assessing the nomination;
(iii) where it decides to reject the nomination , provide reasons for the rejection in writing to the End User and the Operator and thereafter use its best endeavours to facilitate the resolution of any matter the subject of its reasons; and
(iv) where it accepts the nomination, promptly do all things reasonably required (including compliance with Clause 2.3(g) where applicable and amending the relevant Train Operations Agreement to the extent required) to ensure that any delay to Train Services is minimised to the extent practicable. If Aurizon Network accepts a nomination given under Clause 2.3(b) , within 10 Business Days of notifying the End User and Operator of its acceptance pursuant to Clause 2.3(d)(i), Aurizon Network must:
(v) where a Train Operations Agreement was provided in accordance with Clause 2.3(b)(iv)(A), QR Network must execute both copies of the Train Operations Agreement and return one copy to the Operator; andor
(vi) where a statement and evidence was provided in accordance with Clause 2.3(b)(iv)(B), QR Network must vary the relevant Train Operations Agreement to include the relevant Access Rights.right to operate Train Services utilising the Access Rights in respect of which the Operator was nominated, and provide notice of that variation to the Operator.
Appears in 1 contract
Samples: End User Access Agreement
Exercise of access rights. (a) The Parties acknowledge and agree that::
(i) the grant of the Access Rights to the End User in accordance with this Agreement does not entitle the End User to itself operate Train Services on the Nominated Network Network; and (unless it is also an Operator which it is entitled to nominate to use the Access Rights in accordance with this Clause 2.3); and
(ii) the End User can only utilise the Access Rights by nominating an Operator from time to time, in accordance with Clause 2.3(b), to use Access Rights, allocated to that Operator by the End User (including pursuant to a variation of allocations pursuant to Clause 2.3(f))User, under the terms of a Train Operations Agreement (and may nominate more than one Operator).
(b) Subject to Clause 2.3(g2.3(fg), the End User may, from time to time, provided that it is not in material breach of any of its obligations under this Agreement, upon giving at least 30 days prior written notice to Aurizon Network and the relevant OperatorQR Network, nominate an Operator (for a period of not less than three months and comprised only of whole Months) to utilise all or part of the Access Rights by written notice to Aurizon QR Network which:
(i) specifies the name, ABN, address and contact details of the Operator;
(ii) specifies the Access Rights which the End User wishes to allocate to the Operator for the Operator to use in providing Train Services for the End User;
(iii) specifies the first day and the last day of the period for which the Access Rights are to be allocated to the Operator; and
(iv) is accompanied by either:
(A) a Train Operations Agreement (in duplicate) in the form set out in Schedule 6 (or such other form as Aurizon QR Network and the Operator have agreed), duly executed by the Operator, which reflects in Schedule 1 the Access Rights which the End User wishes to allocate to the Operator; or
(B) a statement identifying the Operator’s existing applicable Train Operations Agreement in respect of utilisation of the Access Rights under this Agreement and evidence that the Operator agrees to the relevant nomination, provided that at no time can the Access Rights allocated by the End User to any Operators exceed, in aggregate, the End User’s Access Rights under this Agreement.
Appears in 1 contract
Samples: End User Access Agreement
Exercise of access rights. (a) The Parties acknowledge and agree that:
(i) the grant of the Access Rights to the End User in accordance with this Agreement does not entitle the End User to itself operate Train Services on the Nominated Network (unless it is also an Operator which it is entitled to nominate to use the Access Rights in accordance with this Clause 2.3); and
(ii) the End User can only utilise the Access Rights by nominating an Operator from time to time, in accordance with Clause 2.3(b), to use Access Rights, allocated to that Operator by the End User (including pursuant to a variation of allocations pursuant to Clause 2.3(f))User, under the terms of a Train Operations Agreement (and may nominate more than one Operator).
(b) Subject to Clause 2.3(g2.3(h), the End User may, from time to time, provided that it is not in material breach of any of its obligations under this Agreement, upon giving at least 30 days prior written notice to Aurizon Network and the relevant OperatorQR Network, nominate an Operator to utilise all or part of the Access Rights (in any quantity and for any period) by written notice to Aurizon QR Network which:
(i) specifies the name, ABN, address and contact details of the Operator;
(ii) specifies the Access Rights which the End User wishes to allocate to the Operator for the Operator to use in providing Train Services for the End User;
(iii) specifies the first day and the last day of the period for which the Access Rights are to be allocated to the Operator; and
(iv) is accompanied by either:
(A) a Train Operations Agreement (in duplicate) in the form set out in Schedule 6 (or such other form as Aurizon QR Network and the Operator have agreed), duly executed by the Operator, which reflects in Schedule 1 the Access Rights which the End User wishes to allocate to the Operator; or
(B) a statement identifying the Operator’s existing applicable Train Operations Agreement in respect of utilisation of the Access Rights under this Agreement and evidence that the Operator agrees to the relevant nomination, provided that at no time can the Access Rights allocated by the End User to any Operators exceed, in aggregate, the End User’s Access Rights under this Agreement.
Appears in 1 contract
Samples: End User Access Agreement
Exercise of access rights. (a) The Parties acknowledge and agree that:
(i) the grant of the Access Rights to the End User in accordance with this Agreement does not entitle the End User to itself operate Train Services on the Nominated Network (unless it is also an Operator which it is entitled to nominate to use the Access Rights in accordance with this Clause 2.3); and
(ii) the End User can only utilise the Access Rights by nominating an Operator from time to time, in accordance with Clause 2.3(b), to use Access Rights, allocated to that Operator by the End User (including pursuant to a variation of allocations pursuant to Clause 2.3(f)), under the terms of a Train Operations Agreement (and may nominate more than one Operator).
(b) Subject to Clause 2.3(g), the End User may, from time to time, provided that it is not in material breach of any of its obligations under this Agreement, upon giving at least 30 days prior written notice to Aurizon Network and the relevant Operator, nominate an Operator to utilise all or part of the Access Rights by written notice to Aurizon Network which:
(i) specifies the name, ABN, address and contact details of the Operator;
(ii) specifies the Access Rights which the End User wishes to allocate to the Operator for the Operator to use in providing Train Services for the End User;
(iii) specifies the first day and the last day of the period for which the Access Rights are to be allocated to the Operator; and
(iv) is accompanied by either:
(A) a Train Operations Agreement (in duplicate) in the form set out in Schedule 6 (or such other form as Aurizon Network and the Operator have agreed), duly executed by the Operator, which reflects in Schedule 1 the Access Rights which the End User wishes to allocate to the Operator; or
(B) a statement identifying the Operator’s existing applicable Train Operations Agreement in respect of utilisation of the Access Rights under this Agreement and evidence that the Operator agrees to the relevant nomination, provided that at no time can the Access Rights allocated by the End User to any Operators exceed, in aggregate, the End User’s Access Rights under this Agreement.
(c) Notwithstanding any other provision in this Agreement, Aurizon Network is not obliged to accept, or act on, any nomination of an Operator by the End User under Clause 2.3(b) if that Operator is in material breach of any of its obligations under an existing Access Agreement or train operations agreement and unless Aurizon Network is satisfied that the Operator is:
(i) financially sound; and
(ii) otherwise capable of performing the obligations of the operator under a Train Operations Agreement.
(d) Aurizon Network shall, in respect of a nomination by the End User under Clause 2.3(b):
(i) within 10 Business Days of receiving the nomination, notify the End User and the relevant Operator whether it accepts or rejects the nomination;
(ii) subject to Clause 2.3(c), act reasonably in assessing the nomination;
(iii) where it decides to reject the nomination , provide reasons for the rejection in writing to the End User and the Operator and thereafter use its best endeavours to facilitate the resolution of any matter the subject of its reasons; and
(iv) where it accepts the nomination, promptly do all things reasonably required (including compliance with Clause 2.3(g) where applicable and amending the relevant Train Operations Agreement to the extent required) to ensure that any delay to Train Services is minimised to the extent practicable.
(e) If Aurizon Network accepts a nomination given under Clause 2.3(b) , within 10 Business Days of notifying the End User and Operator of its acceptance pursuant to Clause 2.3(d)(i), Aurizon Network must:
(i) where a Train Operations Agreement was provided in accordance with Clause 2.3(b)(iv)(A), execute both copies of the Train Operations Agreement and return one copy to the Operator; or
(ii) where a statement and evidence was provided in accordance with Clause 2.3(b)(iv)(B), vary the relevant Train Operations Agreement to include the right to operate Train Services utilising the Access Rights in respect of which the Operator was nominated, and provide notice of that variation to the Operator.
(f) The End User may, from time to time, upon giving at least 2 Business Days (or such other period of time as specified in the System Rules) prior written notice to Aurizon Network and each affected Operator:
(i) vary any nomination previously given by the End User under Clause 2.3(b) or this Clause 2.3(f) so as to vary either or both of the following:
(A) the Access Rights which the End User has allocated to the Operator (provided that at no time can the Access Rights allocated by the End User to any one or more Operators exceed, in aggregate, the End User’s Access Rights under this Agreement); or
(B) the period for which the Access Rights are to be allocated to the Operator (provided that the period for which Access Rights are allocated to the Operator cannot extend beyond the Termination Date), with Aurizon Network to comply with Clause 2.3(d) in respect of any such varied nomination, subject to being required to notify of its acceptance or rejection :
(C) where notice of the varied nomination is given prior to 1200 hours on the Wednesday before the Intermediate Train Plan which will apply at the time the variation commences is settled, within the lesser of 10 Business Days and the period remaining prior to the relevant Intermediate Train Plan being finalised (or such other period of time as specified in the System Rules); or
(D) where notice of the varied nomination is given after 1200 hours on the Wednesday before the Intermediate Train Plan which will apply at the time the variation commences is settled, before the next Daily Train Plan relevant to the Train services being reallocated is settled (or such other period of time as specified in the System Rules); or
(ii) withdraw any nomination previously given by the End User under Clause 2.3(b) or this Clause 2.3(f). Where an Operator receives an increased allocation of Access Rights following a varied nomination in accordance with this Clause 2.3(f), and the date on which that variation commences is during the period covered by the then current Intermediate Train Plan, Aurizon Network will, for the purposes of clause 2.4(d)(vi) and 2.4(g) of Schedule 10 of the Train Operations Agreement (and any similar provision of applicable System Rules), agree to, and use its reasonable endeavours to procure the Infrastructure Service Providers agree to, the variations in the Daily Train Plain from the Intermediate Train Plain which are required to accommodate the additional Train Services of such an Operator corresponding to the increased allocation, provided such variations would not result in any existing Railway Operator's scheduled Train service/s not being met or a Planned Possession not being met.
(g) If at any time:
(i) the End User intends to:
(A) nominate an Operator to utilise all or part of the Access Rights under Clause 2.3(b); or
(B) vary a nomination previously given by the End User under Clause 2.3(b) pursuant to Clause 2.3(f); and the Train Services of the relevant Operator will have a Train Service Description different from that contemplated in Schedule 1; or
(ii) the End User otherwise wishes to vary the Train Services from the Train Service Description nominated in Schedule 1, then:
(iii) prior to nominating the Operator, varying the nomination or varying the nominationTrain Services, Aurizon Network and the End User must negotiate and agree any amendments to this Agreement (including any amendments to the Access Rights and the Base Access Charges) that may be necessary to reflect the Train Service Description of the Train Services to be operated by the relevant Operator for that part of the Access Rights to be allocated to that Operator;
(iv) [the End User must pay, or cause to be paid, to Aurizon Network any unpaid Adjustment Charges that, but for the nomination or variation, are or would have been payable by the Operator who provided Train Services corresponding to the Access Rights immediately prior to the relevant nomination or variation;
(v) the obligation of the End User under Clause 2.3(g)(iv) is a condition precedent to any amendments agreed between the Parties under Clause 2.3(g)(iii)]; and [Square bracketed text only to be included where End User is only paying TOP Charges]
(vi) no amendment to the Access Rights that results in the End User being granted increased rights to access the Nominated Network has any effect unless and until the End User and Aurizon Network have complied with Aurizon Network’s Access Undertaking (including with respect to the allocation of those increased Access Rights).
(h) If at any time:
(i) the Access Rights of the End User are reduced (by agreement or under Clause 4.1 or Clause 4.5), or relinquished or transferred (by agreement under Clause 4.2); and
(ii) as a result of such reduction, relinquishment or transfer of Access Rights the Access Rights sought to be allocated by the End User to any one or more Operators under this Clause 2.3 exceed, in aggregate, the End User’s Access Rights under this Agreement, (such excess being the Over-Allocation)., then, unless the End User gives notice to Aurizon Network and each affected Operator in accordance with Clause 2.3(f) varying any nominations previously given under Clause 2.3(b) to eliminate the Over-Allocation, the End User will be deemed to have given a notice to Aurizon Network in accordance with Clause 2.3(f):
(i) if the End User has only nominated one Operator under Clause 2.3(b), reducing the Access Rights which the End User has allocated to the Operator under its Train Operations Agreement by the Over-Allocation; or
(ii) if the End User has nominated multiple Operators under Clause 2.3(b), reducing the Access Rights which the End User has allocated to each Operator under their respective Train Operations Agreements by a share of the Over-Allocation that is as closely as possible proportionate to the Train Services allocated to the Operator as a share of the total Train Services allocated to all Operators, and such reduction will be deemed to be accepted by Aurizon Network and will take effect on the date the reduction, relinquishment or transfer takes effect, with Aurizon Network providing written notice of the reduction to each affected Operator as soon as practicable..
(i) [If the End User wishes to or is deemed to vary or withdraw its allocation of Access Rights to an Operator in accordance with clause 2.3(f), or is deemed to vary or withdraw its allocation of Access Rights to an Operator in accordance with clause 2.3(h), the End User must pay to Aurizon Network any Adjustment Charges that, but for the said variation or withdrawal of the
Appears in 1 contract
Samples: End User Access Agreement
Exercise of access rights. (a) The Parties acknowledge and agree that:
(i) the grant of the Access Rights to the End User in accordance with this Agreement does not entitle the End User to itself operate Train Services on the Nominated Network (unless it is also an Operator which it is entitled to nominate to use the Access Rights in accordance with this Clause 2.3); and
(ii) the End User can only utilise the Access Rights by nominating an Operator from time to time, in accordance with Clause 2.3(b), to use Access Rights, allocated to that Operator by the End User (including pursuant to a variation of allocations pursuant to Clause 2.3(f))User, under the terms of a Train Operations Agreement (and may nominate more than one Operator).
(b) Subject to Clause 2.3(g), the End User may, from time to time, provided that it is not in material breach of any of its obligations under this Agreement, upon giving at least 30 days prior written notice to Aurizon Network and the relevant OperatorQR Network, nominate an Operator to utilise all or part of the Access Rights by written notice to Aurizon QR Network which:
(i) specifies the name, ABN, address and contact details of the Operator;
(ii) specifies the Access Rights which the End User wishes to allocate to the Operator for the Operator to use in providing Train Services for the End User;
(iii) specifies the first day and the last day of the period for which the Access Rights are to be allocated to the Operator; and
(iv) is accompanied by either:
(A) a Train Operations Agreement (in duplicate) in the form set out in Schedule 6 (or such other form as Aurizon QR Network and the Operator have agreed), duly executed by the Operator, which reflects in Schedule 1 the Access Rights which the End User wishes to allocate to the Operator; oror , provided that at no time can the Access Rights allocated by the End User to any Operators exceed, in aggregate, the End User’s Access Rights under this Agreement.
(B) a statement identifying the Operator’s existing applicable Train Operations Agreement in respect of utilisation of the Access Rights under this Agreement and evidence that the Operator agrees to the relevant nomination, provided that at no time can the Access Rights allocated by the End User to any Operators exceed, in aggregate, the End User’s Access Rights under this Agreement.
(c) Notwithstanding any other provision in this Agreement, QR Network is not obliged to accept, or act on, any nomination of an Operator given by the End User under Clause 2.3(b) if that Operator is in material breach of any of its obligations under an existing Train OperationsAccess Agreement or train operations agreement and unless QR Network is satisfied that the Operator is:
(i) financially sound; and
(ii) otherwise capable of performing the obligations of the operator under a Train Operations Agreement.
(d) QR Network shall, in respect of a nomination given by the End User under Clause 2.3(b):
(i) within 10 Business Days of receiving the nomination, notify the End User whether it accepts or rejects the nomination;
(ii) without limiting Clause 2.3(c), act reasonably in assessing anythe nomination under Clause 2.3(b);
(iii) where it decides to reject anythe nomination pursuant to Clause 2.3(b), provide reasons for the rejection in writing to the End User; and
(iv) where it accepts anythe nomination pursuant to Clause 2.3(b), promptly do all things reasonably required (including compliance with Clause 2.3(g) where applicable and amending the relevant Train Operations Agreement to the extent required) to ensure that any delay to Train Services is minimised to the extent practicable.
(e) Within 10 Business Days of receipt of:
Appears in 1 contract
Samples: End User Access Agreement
