Restrictions on claims. 11.1 Notification and mitigation A party wishing to claim under any indemnity provided for in this contract: (a) shall notify the other party of the relevant circumstances giving rise to that claim as soon as reasonably practicable after first becoming aware of those circumstances (and in any event within 365 days of first becoming so aware); and (b) subject to clause 11.1(c), shall take all reasonable steps to prevent, mitigate and restrict the circumstances giving rise to that claim and any Relevant Losses connected with that claim; but (c) shall not be required to exercise any specific remedy available to it under this contract. 11.2 Restrictions on claims by Network Rail Any claim by Network Rail against the Train Operator for indemnity for Relevant Losses: (a) shall exclude payments to any person under or in accordance with the provisions of any Access Agreement other than any such payments which are for obligations to compensate for damage to property, and so that any claim for indemnity under this contract for such payments for damage to property, in relation to any incident, shall be limited to: (i) the maximum amount for which the Train Operator would be liable for such damage in accordance with the Claims Allocation and Handling Agreement; less (ii) any other compensation which the Train Operator has an obligation to pay for such damage; (b) shall exclude loss of revenue in respect of permission to use any part of the Network under or in accordance with any Access Agreement with any person; and (c) shall: (i) include Relevant Losses only to the extent that these constitute amounts which Network Rail would not have incurred as network owner and operator but for the relevant breach; and (ii) give credit for any savings to Network Rail which result or are likely to result from the incurring of such amounts. 11.3 Restrictions on claims by Train Operator Any claim by the Train Operator against Network Rail for indemnity for Relevant Losses: (a) shall exclude any Relevant Losses to the extent that they result from delays to or cancellations of trains (other than delays or cancellations in circumstances where the SPP Threshold has been exceeded as provided for in paragraph 18 of Schedule 8); and (b) shall: (i) include Relevant Losses only to the extent that these constitute amounts which the Train Operator would not have incurred as train operator but for the relevant breach; and (ii) give credit for any savings to the Train Operator which result or are likely to result from the incurring of such amounts. 11.4 Restriction on claims by both parties Any claim for indemnity for Relevant Losses shall exclude Relevant Losses which: (a) do not arise naturally from the breach; and (b) were not, or may not reasonably be supposed to have been, within the contemplation of the parties: (i) at the time of the making of this contract; or (ii) where the breach relates to a modification or amendment to this contract, at the time of the making of such modification or amendment, as the probable result of the breach. 11.5 Limitation on liability Schedule 9 shall have effect so as to limit the liability of the parties to one another under the indemnities in clauses 8.2 and 10, but: (a) does not limit any liability arising under Schedule 4, Schedule 5, Schedule 7 or Schedule 8 (other than under paragraph 18 of Schedule 8) or under the Traction Electricity Rules; (b) in relation to a failure to perform an obligation under the Network Code, only to the extent (including as to time and conditions) that the Network Code so provides; and (c) subject to clause 18.3.3.
Appears in 10 contracts
Samples: Track Access Contract (Passenger Services), Track Access Contract (Passenger Services), Track Access Contract (Passenger Services)
Restrictions on claims.
11.1 Notification and mitigation A party wishing to claim under any indemnity provided for in this contract:
(a) shall notify the other party of the relevant circumstances giving rise to that claim as soon as reasonably practicable after first becoming aware of those circumstances (and in any event within 365 days of first becoming so aware); and
(b) subject to clause 11.1(c), shall take all reasonable steps to prevent, mitigate and restrict the circumstances giving rise to that claim and any Relevant Losses connected with that claim; but
(c) shall not be required to exercise any specific remedy available to it under this contract.
11.2 Restrictions on claims by Network Rail Any claim by Network Rail against the Train Operator for indemnity for Relevant Losses:
(a) shall exclude payments to any person under or in accordance with the provisions of any Access Agreement other than any such payments which are for obligations to compensate for damage to property, and so that any claim for indemnity under this contract for such payments for damage to property, in relation to any incident, shall be limited to:
(i) the maximum amount for which the Train Operator would be liable for such damage in accordance with the Claims Allocation and Handling Agreement; less
(ii) any other compensation which the Train Operator has an obligation to pay for such damage;
(b) shall exclude loss of revenue in respect of permission to use any part of the Network under or in accordance with any Access Agreement with any person; and
(c) shall:
(i) include Relevant Losses only to the extent that these constitute amounts which Network Rail would not have incurred as network owner and operator but for the relevant breach; and
(ii) give credit for any savings to Network Rail which result or are likely to result from the incurring of such amounts.
11.3 Restrictions on claims by Train Operator Any claim by the Train Operator against Network Rail for indemnity for Relevant Losses:
(a) shall exclude any Relevant Losses to the extent that they result from delays to or cancellations of trains (other than delays or cancellations in circumstances where the SPP Threshold has been exceeded as provided for in paragraph 18 of Schedule 8); and
(b) shall:
(i) include Relevant Losses only to the extent that these constitute amounts which the Train Operator would not have incurred as train operator but for the relevant breach; and
(ii) give credit for any savings to the Train Operator which result or are likely to result from the incurring of such amounts.
11.4 Restriction on claims by both parties Any claim for indemnity for Relevant Losses shall exclude Relevant Losses which:
(a) do not arise naturally from the breach; and
(b) were not, or may not reasonably be supposed to have been, within the contemplation of the parties:
(i) at the time of the making of this contract; or
(ii) where the breach relates to a modification or amendment to this contract, at the time of the making of such modification or amendment, as the probable result of the breach.
11.5 Limitation on liability Schedule 9 shall have effect so as to limit the liability of the parties to one another under the indemnities in clauses 8.2 and 10, but:
(a) does not limit any liability arising under Schedule 4, Schedule 5, Schedule 7 or Schedule 8 (other than under paragraph 18 of Schedule 8) or under the Traction Electricity Rules;
(b) in relation to a failure to perform an obligation under the Network Code, only to the extent (including as to time and conditions) that the Network Code so provides; and
(c) subject to clause 18.3.3.11.6 Claims Allocation and Handling Agreement
Appears in 3 contracts
Samples: Track Access Contract (Passenger Services), Track Access Contract (Passenger Services), Track Access Contract (Passenger Services)
Restrictions on claims.
11.1 .11.1 Notification and mitigation A party wishing to claim under any indemnity provided for in this contract:
(a) shall notify the other party of the relevant circumstances giving rise to that claim as soon as reasonably practicable after first becoming aware of those circumstances (and in any event within 365 days of first becoming so aware); and
(b) subject to clause Clause 11.1(c), shall take all reasonable steps to prevent, mitigate and restrict the circumstances giving rise to that claim and any Relevant Losses connected with that claim; but
(c) shall not be required to exercise any specific remedy available to it under this contract.
11.2 .11.2 Restrictions on claims by Network Rail Any claim by Network Rail against the Train Operator Freight Customer for indemnity for Relevant Losses:
(a) shall exclude payments any Relevant Losses to any person under the extent that they result from a cancellation of or a delay in accordance with the provisions commencement to a Restriction of any Access Agreement other than any such payments which are for obligations to compensate for damage to property, and so that any claim for indemnity under this contract for such payments for damage to property, in relation to any incident, shall be limited to:
(i) the maximum amount for which the Train Operator would be liable for such damage in accordance with the Claims Allocation and Handling Agreement; less
(ii) any other compensation which the Train Operator has an obligation to pay for such damageUse;
(b) [Not used];
(c) shall exclude loss of revenue in respect of permission to use any part of the Network under or in accordance with any Access Agreement with any personperson (including any Operator Access Agreement); and
(cd) shall:
(i) include Relevant Losses only to the extent that these constitute amounts which Network Rail would not have incurred as network owner and operator but for the relevant breach; and
(ii) give credit for any savings to Network Rail which result or are likely to result from the incurring of such amounts.
11.3 .11.3 Restrictions on claims by Train Operator Freight Customer Any claim by the Train Operator Freight Customer against Network Rail for indemnity for Relevant Losses:
(a) shall exclude any Relevant Losses to the extent that they result from delays to or cancellations of trains (other than delays or cancellations in circumstances where the SPP Threshold has been exceeded as provided for in paragraph 18 of Schedule 8)trains; and
(b) shall:
(i) include Relevant Losses only to the extent that these constitute amounts which the Train Operator Freight Customer would not have incurred as train operator freight customer under this contract but for the relevant breach; and
(ii) give credit for any savings to the Train Operator Freight Customer which result or are likely to result from the incurring of such amounts.
11.4 .11.4 Restriction on claims by both parties Any claim for indemnity for Relevant Losses shall exclude Relevant Losses which:
(a) do not arise naturally from the breach; and
(b) were not, or may not reasonably be supposed to have been, within the contemplation of the parties:
(i) at the time of the making of this contract; or
(ii) where the breach relates to a modification or amendment to this contract, at the time of the making of such modification or amendment, as the probable result of the breach.
11.5 Limitation on liability Schedule 9 shall have effect so as to limit the liability of the parties to one another under the indemnities in clauses 8.2 and 10, but:
(a) does not limit any liability arising under Schedule 4, Schedule 5, Schedule 7 or Schedule 8 (other than under paragraph 18 of Schedule 8) or under the Traction Electricity Rules;
(b) in relation to a failure to perform an obligation under the Network Code, only to the extent (including as to time and conditions) that the Network Code so provides; and
(c) subject to clause 18.3.3.
Appears in 1 contract
Restrictions on claims.
11.1 2.1 Notification and mitigation A party wishing to claim under any indemnity provided for in this contract:mitigation
(a) shall notify the other party of the relevant circumstances giving rise to that claim as soon as reasonably practicable after first becoming aware of those circumstances (and in any event within 365 days of first becoming so aware); and
(b) subject where practicable given the circumstances, consult with the other party as to clause 11.1(c)the ways in which the circumstances giving rise to that claim and any damage, losses, claims, proceedings, demands, liabilities, costs, damages, orders or out of pocket expenses connected with that claim may be prevented, defended, mitigated or restricted and shall take all reasonable steps to prevent, mitigate mitigate, defend and restrict any and all of the circumstances giving rise to that claim same and any Relevant Losses connected with that claim; but
(c) shall not be required to exercise any specific remedy available to it under this contractthe Contract.
11.2 2.2 Restrictions on claims by Network Rail Any claim by Network Rail against the Train Operator for indemnity for Relevant Losses:HS1 Ltd
(a) shall exclude any Relevant Losses to the extent that they result from a cancellation of or a delay in commencement to a Restriction of Use save where such delay or cancellation is attributable to the Train Operator;
(b) shall exclude payments to any person (other than the Train Operator) under or in accordance with the provisions of any Access Agreement access agreement with such person other than any such payments which are for obligations to compensate for damage to property, and so that any claim for indemnity under this contract the Contract for such payments for damage to property, in relation to any incident, shall be limited to:
(i) to the maximum amount for which the Train Operator would be liable for such damage in accordance with the CTRL Claims Allocation and Handling Agreement; less
(ii) any other compensation which the Train Operator has an obligation to pay for such damage;
(b) shall exclude loss of revenue in respect of permission to use any part of the Network under or in accordance with any Access Agreement with any person; and
(c) shall:
(i) include Relevant Losses only to the extent that these constitute amounts which Network Rail HS1 Ltd would not have incurred as network owner and operator but for the relevant breach; and
(ii) give credit for any savings to Network Rail HS1 Ltd which result or are likely to result from the incurring of such amounts.
11.3 Restrictions on claims by Train Operator Any claim by the Train Operator against Network Rail for indemnity for Relevant Losses:
(a) shall exclude any Relevant Losses to the extent that they result from delays to or cancellations of trains (other than delays or cancellations in circumstances where the SPP Threshold has been exceeded as provided for in paragraph 18 of Schedule 8); and
(b) shall:
(i) include Relevant Losses only to the extent that these constitute amounts which the Train Operator would not have incurred as train operator but for the relevant breach; and
(ii) give credit for any savings to the Train Operator which result or are likely to result from the incurring of such amounts.
11.4 Restriction on claims by both parties Any claim for indemnity for Relevant Losses shall exclude Relevant Losses which:
(a) do not arise naturally from the breach; and
(b) were not, or may not reasonably be supposed to have been, within the contemplation of the parties:
(i) at the time of the making of this contract; or
(ii) where the breach relates to a modification or amendment to this contract, at the time of the making of such modification or amendment, as the probable result of the breach.
11.5 Limitation on liability Schedule 9 shall have effect so as to limit the liability of the parties to one another under the indemnities in clauses 8.2 and 10, but:
(a) does not limit any liability arising under Schedule 4, Schedule 5, Schedule 7 or Schedule 8 (other than under paragraph 18 of Schedule 8) or under the Traction Electricity Rules;
(b) in relation to a failure to perform an obligation under the Network Code, only to the extent (including as to time and conditions) that the Network Code so provides; and
(c) subject to clause 18.3.3.
Appears in 1 contract
Samples: Track Access Agreement
Restrictions on claims.
11.1 Notification and mitigation A party wishing to claim under any indemnity provided for in this contract:
(a) shall notify the other party of the relevant circumstances giving rise to that claim as soon as reasonably practicable after first becoming aware of those circumstances (and in any event within 365 days of first becoming so aware); andand
(b) subject to clause Clause 11.1(c), shall take all reasonable steps to prevent, mitigate and restrict the circumstances giving rise to that claim and any Relevant Losses connected with that claim; butbut
(c) shall not be required to exercise any specific remedy available to it under this contract.contract.
11.2 Restrictions on claims by Network Rail Any claim by Network Rail against the Train Operator for indemnity for Relevant Losses:
(a) shall exclude payments to any person under or in accordance with the provisions of any Access Agreement other than any such payments which are for obligations to compensate for damage to property, and so that any claim for indemnity under this contract for such payments for damage to property, in relation to any incident, shall be limited to:to:
(i) the maximum amount for which the Train Operator would be liable for such damage in accordance with the Claims Allocation and Handling Agreement; lessless
(ii) any other compensation which the Train Operator has an obligation to pay for such damage;damage;
(b) shall exclude loss of revenue in respect of permission to use any part of the Network under or in accordance with any Access Agreement with any person; andand
(c) shall:shall:
(i) include Relevant Losses only to the extent that these constitute amounts which Network Rail would not have incurred as network owner and operator but for the relevant breach; andand
(ii) give credit for any savings to Network Rail which result or are likely to result from the incurring of such amounts.amounts.
11.3 Restrictions on claims by Train Operator Any claim by the Train Operator against Network Rail for indemnity for Relevant Losses:
(a) shall exclude any Relevant Losses to the extent that they result from delays to or cancellations of trains (other than delays or cancellations in circumstances where the SPP Threshold has been exceeded as provided for in paragraph 18 of Schedule 8)trains; andand
(b) shall:shall:
(i) include Relevant Losses only to the extent that these constitute amounts which the Train Operator would not have incurred as train operator but for the relevant breach; andand
(ii) give credit for any savings to the Train Operator which result or are likely to result from the incurring of such amounts.amounts.
11.4 Restriction on claims by both parties Any claim for indemnity for Relevant Losses shall exclude Relevant Losses which:
(a) do not arise naturally from the breach; andand
(b) were not, or may not reasonably be supposed to have been, within the contemplation of the parties:parties:
(i) at the time of the making of this contract; oror
(ii) where the breach relates to a modification or amendment to this contract, at the time of the making of such modification or amendment, amendment, as the probable result of the breach.
11.5 Limitation on liability Schedule 9 shall have effect so as to limit the liability of the parties to one another under the indemnities in clauses 8.2 and 10, but:
(a) does not limit any liability arising under Schedule 4, Schedule 5, Schedule 7 or Schedule 8 (other than under paragraph 18 of Schedule 8) or under the Traction Electricity Rules;
(b) in relation to a failure to perform an obligation under the Network Code, only to the extent (including as to time and conditions) that the Network Code so provides; and
(c) subject to clause 18.3.3.
Appears in 1 contract
Samples: Track Access Contract
