Use of Non-Compliant Services. (a) (Request to temporarily use a Non-Compliant Service) ARTC will not unreasonably withhold its consent to a request from the Access Holder to operate a Non-Compliant Service for a Period (including a request from the Access Holder for an Operator to operate more than the number of Services specified to be operated by that Operator in a Period in the Train Path Schedule) if: (i) the Access Holder provides ARTC with three days notice of its intention to use or operate a Non-Compliant Service; and (ii) ARTC is satisfied that the use or operation of the Non-Compliant Service in that Period will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder. Where the Non-Compliant Service has the same Services Assumptions prescribed for that Train Path in the Train Path Schedule, then there is deemed to be no adverse impact. (b) If ARTC consents to the use or operation of a Non-Compliant Service, ARTC may (but is not required to) update the TOP Charges to be payable by the Access Holder to reflect the characteristics of the Non-Compliant Service used or operated by the Access Holder. (c) (Permanent change to Service Assumptions) ARTC will not unreasonably withhold its consent to a variation of the Service Assumptions for a Train Path (including a variation of the number of Services specified to be operated by an Operator each Period in the Train Path Schedule) if: (i) the Access Holder provides ARTC with 30 days notice of the new service assumptions proposed by the Access Holder for the Train Path; (ii) ARTC is satisfied that the use or operation of the Path Usages in accordance with the new service assumptions proposed by the Access Holder will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder; (iii) the variation of the Service Assumptions does not lead to a reduction in TOP Charges that would otherwise be payable. (d) Despite clause 11.5(c)(iii), ARTC will not unreasonably withhold its consent to a permanent change to the Service Assumptions for a Train Path that would lead to a reduction in TOP Charges if, in ARTC’s reasonable opinion reached in consultation with the HVCCC, the variation involves the transfer to a Service which provides for more efficient use of Capacity and Coal Chain Capacity. (e) If the Service Assumptions applicable to a Train Path have been permanently amended under clause 11.5(c), the Access Holder agrees that the applicable Train Path Schedule will be amended to reflect the new Service Assumptions and the TOP Charges payable by the Access Holder under clause 5.2 will be updated to reflect the new Service Assumptions.
Appears in 4 contracts
Samples: Access Holder Agreement, Access Holder Agreement, Access Holder Agreement
Use of Non-Compliant Services. (a) (Request to temporarily use a Non-Compliant Service) ARTC will not unreasonably withhold its consent to a request from the Access Holder to operate a Non-Compliant Service for a Period (including a request from the Access Holder for an Operator to operate more than the number of Services specified to be operated by that Operator in a Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with three days notice of its intention to use or operate a Non-Compliant Service; and
(ii) ARTC is satisfied that the use or operation of the Non-Non- Compliant Service in that Period will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder. Where the Non-Compliant Service has the same Services Assumptions prescribed for that Train Path in the Train Path Schedule, then there is deemed to be no adverse impact.
(b) If ARTC consents to the use or operation of a Non-Compliant ServiceService and that Non-Compliant Service is outside of the Services Envelope, ARTC may (but is not required to) update the TOP Charges to be payable by the Access Holder to reflect the characteristics of the Non-Compliant Service used or operated by the Access Holder.
(c) (Permanent change to Service Assumptions) ARTC will not unreasonably withhold its consent to a variation of the Service Assumptions for a Train Path (including a variation of the number of Services specified to be operated by an Operator each Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with 30 days notice of the new service assumptions proposed by the Access Holder for the Train Path;
(ii) ARTC is satisfied that the use or operation of the Path Usages in accordance with the new service assumptions proposed by the Access Holder will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder;; and
(iii) the variation of the Service Assumptions does not lead to a reduction in TOP Charges that would otherwise be payable.
(d) Despite clause 11.5(c)(iii), ARTC will not unreasonably withhold its consent to a permanent change to the Service Assumptions for a Train Path that would lead to a reduction in TOP Charges if, in ARTC’s reasonable opinion reached in consultation with the HVCCC, the variation involves the transfer to a Service which provides for more efficient use of Capacity and Coal Chain Capacity.
(e) If the Service Assumptions applicable to a Train Path have been permanently amended under clause 11.5(c), the Access Holder agrees that the applicable Train Path Schedule will be amended to reflect the new Service Assumptions and the TOP Charges payable by the Access Holder under clause 5.2 5 will be updated to reflect the new Service Assumptions.
Appears in 2 contracts
Samples: Indicative Access Holder Agreement, Indicative Access Holder Agreement
Use of Non-Compliant Services. (a) (Request to temporarily use a Non-Compliant Service) ARTC will not unreasonably withhold its consent to a request from the Access Holder to operate a Non-Compliant Service for a Period (including a request from the Access Holder for an Operator to operate more than the number of Services specified to be operated by that Operator in a Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with [three days days] notice of its intention to use or operate a Non-Compliant Service; and
(ii) ARTC is satisfied that the use or operation of the Non-Compliant Service in that Period will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder. Where the Non-Compliant Service has the same Services Assumptions prescribed for that Train Path in the Train Path Schedule, then there is deemed to be no adverse impact.
(b) If ARTC consents to the use or operation of a Non-Compliant Service, ARTC may (but is not required to) update the TOP Charges to be payable by the Access Holder to reflect the characteristics of the Non-Compliant Service used or operated by the Access Holder.
(c) (Permanent change to Service Assumptions) ARTC will not unreasonably withhold its consent to a variation of the Service Assumptions for a Train Path (including a variation of the number of Services specified to be operated by an Operator each Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with [30 days days] notice of the new service assumptions proposed by the Access Holder for the Train Path;
(ii) ARTC is satisfied that the use or operation of the Path Usages pPath uUsages in accordance with the new service assumptions proposed by the Access Holder will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder;
(iii) the variation of the Service Assumptions does not lead to a reduction in TOP Charges that would otherwise be payable.
(d) Despite clause 11.5(c)(iii), ARTC will not unreasonably withhold its consent to a permanent change to the Service Assumptions for a Train Path that would lead to a reduction in TOP Charges if, in ARTC’s reasonable opinion reached in consultation with the HVCCC, the variation involves the transfer to a Service which provides for more efficient use of Capacity and Coal Chain Capacity.
(d) (e) If the Service Assumptions applicable to a Train Path have been permanently amended under clause 11.5(c), the Access Holder agrees that the applicable Train Path Schedule will be amended to reflect the new Service Assumptions and the TOP Charges payable by the Access Holder under clause 5.2 will be updated to reflect the new Service Assumptions.
(e) (f) (Consistent use of a Non-Compliant Service without consent) If the Access Holder consistently uses Non-Compliant Services and,
(i) the Access Holder has not sought and obtained consent from ARTC to use a Non-Compliant Service under this clause 11.5;
(ii) ARTC reasonably considers that the use or operation of the Non- Compliant Services has a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder; or
(iii) ARTC reasonably considers that there is a material difference in the TOP Charges paid by the Access Holder for those Path Usages and the TOP Charges that would otherwise be payable for those Path Usages had the Service Assumptions reflected the characteristics of the Non-Compliant Service or the Services used are Non-Compliant Services due to the train type used to operate the Services, ARTC may issue a warning notice requiring the Access Holder to use a Service which complies with the Service Assumptions in the applicable Train Path Schedule.
(f) (g) ARTC will withdraw a warning notice provided under clause 11.5(f) if ARTC is reasonably satisfied that:
(i) the Access Holder had grounds for using a Non-Compliant Service; and
(ii) the Access Holder will not continue to use a Non-Compliant Service without ARTC’s consent (acting reasonably).
(h) If the Access Holder has received a warning notice under clause 11.5(f) (which has not been withdrawn) and if, after 14 days from the receipt of the warning notice, the Access Holder continues to use a Non-Compliant Service then ARTC may at its absolute discretion, on 30 days’ notice to the Access Holder, do one or more of the following:
(i) review and adjust the Service Assumptions in the applicable Train Path Schedule to reflect the characteristics of the Non-Compliant Service;
(ii) review and adjust the Annual Contracted Path Usages in the applicable Train Path Schedule including deleting the number of Path Usages from the relevant Train Path Schedule which ARTC reasonably considers equivalent to the difference in Capacity consumed by the Non-Compliant Service and the Capacity that would have been consumed had the Access Holder used a Service which complied with the applicable Service Assumptions; or
(iii) adjust the TOP Charges to be paid by the Access Holder having regard to:
(A) the characteristics of the Non-Compliant Service when compared with the Service Assumptions set out in the applicable Train Path Schedule; and
(B) the factors which impact on ARTC’s business and Coal Chain Capacity which ARTC is able to have regard to in formulating its Charges.
Appears in 1 contract
Samples: Access Holder Agreement
Use of Non-Compliant Services. (a) (Request to temporarily use a Non-Compliant Service) ARTC will not unreasonably withhold its consent to a request from the Access Holder to operate a Non-Compliant Service for a Period (including a request from the Access Holder for an Operator to operate more than the number of Services specified to be operated by that Operator in a Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with three days notice of its intention to use or operate a Non-Compliant Service; and
(ii) ARTC is satisfied that the use or operation of the Non-Non- Compliant Service in that Period will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder. Where the Non-Compliant Service has the same Services Assumptions prescribed for that Train Path in the Train Path Schedule, then there is deemed to be no adverse impact.
(b) If ARTC consents to the use or operation of a Non-Compliant ServiceService and that Non-Compliant Service is outside of the Services Envelope, ARTC may (but is not required to) update the TOP Charges to be payable by the Access Holder to reflect the characteristics of the Non-Compliant Service used or operated by the Access Holder.
(c) (Permanent change to Service Assumptions) ARTC will not unreasonably withhold its consent to a variation of the Service Assumptions for a Train Path (including a variation of the number of Services specified to be operated by an Operator each Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with 30 days notice of the new service assumptions proposed by the Access Holder for the Train Path;
(ii) ARTC is satisfied that the use or operation of the Path Usages in accordance with the new service assumptions proposed by the Access Holder will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder;; and
(iii) the variation of the Service Assumptions does not lead to a reduction in TOP Charges that would otherwise be payable.
(d) Despite clause 11.5(c)(iii), ARTC will not unreasonably withhold its consent to a permanent change to the Service Assumptions for a Train Path that would lead to a reduction in TOP Charges if, in ARTC’s reasonable opinion reached in consultation with the HVCCC, the variation involves the transfer to a Service which provides for more efficient use of Capacity and Coal Chain Capacity.
(e) If the Service Assumptions applicable to a Train Path have been permanently amended under clause 11.5(c), the Access Holder agrees that the applicable Train Path Schedule will be amended to reflect the new Service Assumptions and the TOP Charges payable by the Access Holder under clause 5.2 5 will be updated to reflect the new Service Assumptions.
(f) (Consistent use of a Non-Compliant Service without consent) If the Access Holder consistently uses Non-Compliant Services and,
(i) the Access Holder has not sought and obtained consent from ARTC to use a Non-Compliant Service under this clause 11.5;
(ii) ARTC reasonably considers that the use or operation of the Non-Compliant Services has a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder; or
(iii) ARTC reasonably considers that there is a material difference in the TOP Charges paid by the Access Holder for those Path Usages and the TOP Charges that would otherwise be payable for those Path Usages had the Service Assumptions reflected the characteristics of the Non- Compliant Service or the Services used are Non-Compliant Services due to the train type used to operate the Services, ARTC may issue a warning notice requiring the Access Holder to use a Service which complies with the Service Assumptions in the applicable Train Path Schedule.
(g) ARTC will withdraw a warning notice provided under clause 11.5(f) if ARTC is reasonably satisfied that:
(i) the Access Holder had grounds for using a Non-Compliant Service; and
(ii) the Access Holder will not continue to use a Non-Compliant Service without ARTC’s consent (acting reasonably).
(h) If the Access Holder has received a warning notice under clause 11.5(f) (which has not been withdrawn) and if, after 14 days from the receipt of the warning notice, the Access Holder continues to use a Non-Compliant Service then ARTC may at its absolute discretion, on 30 days’ notice to the Access Holder, do one or more of the following:
(i) review and adjust the Service Assumptions in the applicable Train Path Schedule to reflect the characteristics of the Non-Compliant Service;
(ii) review and adjust the Annual Contracted Path Usages in the applicable Train Path Schedule including deleting the number of Path Usages from the relevant Train Path Schedule which ARTC reasonably considers equivalent to the difference in Capacity consumed by the Non-Compliant Service and the Capacity that would have been consumed had the Access Holder used a Service which complied with the applicable Service Assumptions; or
(iii) adjust the TOP Charges to be paid by the Access Holder having regard to:
(A) the characteristics of the Non-Compliant Service when compared with the Service Assumptions set out in the applicable Train Path Schedule; and
(B) the factors which impact on ARTC’s business and Coal Chain Capacity which ARTC is able to have regard to in formulating its Charges.
(i) To avoid doubt, the Access Xxxxxx’s obligation to pay TOP Charges will be updated to reflect the revisions to the Service Assumptions made under clause 11.5(h)(i).
(j) To avoid doubt, where a Path Usage is deleted from a Train Path Schedule under this clause 11.5:
(i) the Access Holder’s obligation to pay TOP Charges in respect of that deleted Path Usage is unaffected; and
(ii) the Tolerance available to the Access Holder, calculated in accordance with clause 3.3 will be reviewed and adjusted to reflect the Access Holder’s reduced entitlement to Path Usages in the affected Periods.
(k) ARTC is not entitled to take any of the steps set out in clause 11.5(h) after one year from the date of the warning notice but this does not invalidate any steps taken before this time.
(l) In exercising its rights under this clause 11.5, ARTC may have regard to, and is entitled to rely on, information provided by and recommendations or opinions of, the HVCCC on the impact of Non- Compliant Services, or the operation of Services complying with the new Service Assumptions (as applicable), on Coal Chain Capacity and Capacity.
(m) Nothing in this clause 11.5(f) - (l) affects ARTC’s entitlement to suspend or terminate a Train Path Schedule in accordance with clause 12 of this agreement.
Appears in 1 contract
Samples: Indicative Access Holder Agreement
Use of Non-Compliant Services. (a) (Request to temporarily use a Non-Compliant Service) ARTC will not unreasonably withhold its consent to a request from the Access Holder to operate a Non-Compliant Service for a Period (including a request from the Access Holder for an Operator to operate more than the number of Services specified to be operated by that Operator in a Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with three days notice of its intention to use or operate a Non-Compliant Service; and
(ii) ARTC is satisfied that the use or operation of the Non-Non- Compliant Service in that Period will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder. Where the Non-Compliant Service has the same Services Assumptions prescribed for that Train Path in the Train Path Schedule, then there is deemed to be no adverse impact.
(b) If ARTC consents to the use or operation of a Non-Compliant ServiceService and that Non-Compliant Service is outside of the Services Envelope, ARTC may (but is not required to) update the TOP Charges, Innovation Charges and Efficiency Incentive Charges (as applicable) to be payable by the Access Holder to reflect the characteristics of the Non-Compliant Service used or operated by the Access Holder.
(c) (Permanent change to Service Assumptions) ARTC will not unreasonably withhold its consent to a variation of the Service Assumptions for a Train Path (including a variation of the number of Services specified to be operated by an Operator each Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with 30 days notice of the new service assumptions proposed by the Access Holder for the Train Path;
(ii) ARTC is satisfied that the use or operation of the Path Usages in accordance with the new service assumptions proposed by the Access Holder will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder;; and
(iii) the variation of the Service Assumptions does not lead to a reduction in TOP Charges, Innovation Charges and Efficiency Incentive Charges (as applicable) that would otherwise be payable.
(d) Despite clause 11.5(c)(iii), ARTC will not unreasonably withhold its consent to a permanent change to the Service Assumptions for a Train Path that would lead to a reduction in TOP Charges if, in ARTC’s reasonable opinion reached in consultation with the HVCCC, the variation involves the transfer to a Service which provides for more efficient use of Capacity and Coal Chain Capacity.
(e) If the Service Assumptions applicable to a Train Path have been permanently amended under clause 11.5(c), the Access Holder agrees that the applicable Train Path Schedule will be amended to reflect the new Service Assumptions and the TOP Charges, Innovation Charges and Efficiency Incentive Charges (as applicable) payable by the Access Holder under clause 5.2 5 will be updated to reflect the new Service Assumptions.
(e) (Consistent use of a Non-Compliant Service without consent) If the Access Holder consistently uses Non-Compliant Services and,
(i) the Access Holder has not sought and obtained consent from ARTC to use a Non-Compliant Service under this clause 11.5;
(ii) ARTC reasonably considers that the use or operation of the Non-Compliant Services has a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder; or
(iii) ARTC reasonably considers that there is a material difference in the TOP Charges, Innovation Charges and Efficiency Incentive Charges (as applicable) paid by the Access Holder for those Path Usages and the TOP Charges, Innovation Charges and Efficiency Incentive Charges that would otherwise be payable for those Path Usages had the Service Assumptions reflected the characteristics of the Non- Compliant Service or the Services used are Non-Compliant Services due to the train type used to operate the Services, ARTC may issue a warning notice requiring the Access Holder to use a Service which complies with the Service Assumptions in the applicable Train Path Schedule.
(f) ARTC will withdraw a warning notice provided under clause 11.5(e) if ARTC is reasonably satisfied that:
(i) the Access Holder had grounds for using a Non-Compliant Service; and
(ii) the Access Holder will not continue to use a Non-Compliant Service without ARTC’s consent (acting reasonably).
(g) If the Access Holder has received a warning notice under clause 11.5(e) (which has not been withdrawn) and if, after 14 days from the receipt of the warning notice, the Access Holder continues to use a Non-Compliant Service then ARTC may at its absolute discretion, on 30 days’ notice to the Access Holder, do one or more of the following:
(i) review and adjust the Service Assumptions in the applicable Train Path Schedule to reflect the characteristics of the Non-Compliant Service;
(ii) review and adjust the Annual Contracted Path Usages in the applicable Train Path Schedule including deleting the number of Path Usages from the relevant Train Path Schedule which ARTC reasonably considers equivalent to the difference in Capacity consumed by the Non-Compliant Service and the Capacity that would have been consumed had the Access Holder used a Service which complied with the applicable Service Assumptions; or
(iii) adjust the TOP Charges, Innovation Charges and Efficiency Incentive Charges (as applicable) to be paid by the Access Holder having regard to:
(A) the characteristics of the Non-Compliant Service when compared with the Service Assumptions set out in the applicable Train Path Schedule; and
(B) the factors which impact on ARTC’s business and Coal Chain Capacity which ARTC is able to have regard to in formulating its Charges.
(h) To avoid doubt, the Access Holder’s obligation to pay TOP Charges, Innovation Charges and Efficiency Incentive Charges (as applicable) will be updated to reflect the revisions to the Service Assumptions made under clause 11.5(g)(i).
(i) To avoid doubt, where a Path Usage is deleted from a Train Path Schedule under this clause 11.5:
(i) the Access Holder’s obligation to pay TOP Charges, Innovation Charges and Efficiency Incentive Charges (as applicable) in respect of that deleted Path Usage is unaffected; and
(ii) the Tolerance available to the Access Holder, calculated in accordance with clause 3.3 will be reviewed and adjusted to reflect the Access Holder’s reduced entitlement to Path Usages in the affected Periods.
(j) ARTC is not entitled to take any of the steps set out in clause 11.5(g) after one year from the date of the warning notice but this does not invalidate any steps taken before this time.
(k) In exercising its rights under this clause 11.5, ARTC may have regard to, and is entitled to rely on, information provided by and recommendations or opinions of, the HVCCC on the impact of Non- Compliant Services, or the operation of Services complying with the new Service Assumptions (as applicable), on Coal Chain Capacity and Capacity.
(l) Nothing in this clause 11.5(f) - (l) affects ARTC’s entitlement to suspend or terminate a Train Path Schedule in accordance with clause 12 of this agreement.
Appears in 1 contract
Samples: Access Holder Agreement
Use of Non-Compliant Services. (a) (Request to temporarily use a Non-Compliant Service) ARTC will not unreasonably withhold its consent to a request from the Access Holder to operate a Non-Compliant Service for a Period (including a request from the Access Holder for an Operator to operate more than the number of Services specified to be operated by that Operator in a Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with [three days days] notice of its intention to use or operate a Non-Compliant Service; and
(ii) ARTC is satisfied that the use or operation of the Non-Compliant Service in that Period will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder. Where the Non-Compliant Service has the same Services Assumptions prescribed for that Train Path in the Train Path Schedule, then there is deemed to be no adverse impact.
(b) If ARTC consents to the use or operation of a Non-Compliant Service, ARTC may (but is not required to) update the TOP Charges to be payable by the Access Holder to reflect the characteristics of the Non-Compliant Service used or operated by the Access Holder.
(c) (Permanent change to Service Assumptions) ARTC will not unreasonably withhold its consent to a variation of the Service Assumptions for a Train Path (including a variation of the number of Services specified to be operated by an Operator each Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with [30 days days] notice of the new service assumptions proposed by the Access Holder for the Train Path;
(ii) ARTC is satisfied that the use or operation of the Path Usages path usages in accordance with the new service assumptions proposed by the Access Holder will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder;
(iii) the variation of the Service Assumptions does not lead to a reduction in TOP Charges that would otherwise be payable.
(d) Despite clause 11.5(c)(iii), ARTC will not unreasonably withhold its consent to a permanent change to the Service Assumptions for a Train Path that would lead to a reduction in TOP Charges if, in ARTC’s reasonable opinion reached in consultation with the HVCCC, the variation involves the transfer to a Service which provides for more efficient use of Capacity and Coal Chain Capacity.
(e) If the Service Assumptions applicable to a Train Path have been permanently amended under clause 11.5(c), the Access Holder agrees that the applicable Train Path Schedule will be amended to reflect the new Service Assumptions and the TOP Charges payable by the Access Holder under clause 5.2 will be updated to reflect the new Service Assumptions.
(e) (Consistent use of a Non-Compliant Service without consent) If the Access Holder consistently uses Non-Compliant Services and,
(i) the Access Holder has not sought and obtained consent from ARTC to use a Non-Compliant Service under this clause 11.5;
(ii) ARTC reasonably considers that the use or operation of the Non-Compliant Services has a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder; or
(iii) ARTC reasonably considers that there is a material difference in the TOP Charges paid by the Access Holder for those Path Usages and the TOP Charges that would otherwise be payable for those Path Usages had the Service Assumptions reflected the characteristics of the Non-Compliant Service or the Services used are Non-Compliant Services due to the train type used to operate the Services, ARTC may issue a warning notice requiring the Access Holder to use a Service which complies with the Service Assumptions in the applicable Train Path Schedule.
(f) ARTC will withdraw a warning notice provided under clause 11.5(e) if ARTC is reasonably satisfied that:
(i) the Access Holder had grounds for using a Non-Compliant Service; and
(ii) the Access Holder will not continue to use a Non-Compliant Service without ARTC’s consent (acting reasonably).
(g) If the Access Holder has received a warning notice under clause 11.5(e) (which has not been withdrawn) and if, after 14 days from the receipt of the warning notice, the Access Holder continues to use a Non-Compliant Service then ARTC may at its absolute discretion, on 30 days’ notice to the Access Holder, do one or more of the following:
(i) review and adjust the Service Assumptions in the applicable Train Path Schedule to reflect the characteristics of the Non-Compliant Service;
(ii) review and adjust the Annual Contracted Path Usages in the applicable Train Path Schedule including deleting the number of Path Usages from the relevant Train Path Schedule which ARTC reasonably considers equivalent to the difference in Capacity consumed by the Non-Compliant Service and the Capacity that would have been consumed had the Access Holder used a Service which complied with the applicable Service Assumptions; or
(iii) adjust the TOP Charges to be paid by the Access Holder having regard to:
(A) the characteristics of the Non-Compliant Service when compared with the Service Assumptions set out in the applicable Train Path Schedule; and
(B) the factors which impact on ARTC’s business and Coal Chain Capacity which ARTC is able to have regard to in formulating its Charges.
(h) To avoid doubt, the Access Holder’s obligation to pay TOP Charges will be updated to reflect the revisions to the Service Assumptions made under clause 11.5(g)(i).
(i) To avoid doubt, where a Path Usage is deleted from a Train Path Schedule under this clause 11.5:
(i) the Access Holder’s obligation to pay TOP Charges in respect of that deleted Path Usage is unaffected; and
(ii) the Tolerance available to the Access Holder, calculated in accordance with clause 3.3 will be reviewed and adjusted to reflect the Access Holder’s reduced entitlement to Path Usages in the affected Periods.
(j) ARTC is not entitled to take any of the steps set out in clause 11.5(g) after one year from the date of the warning notice but this does not invalidate any steps taken before this time.
(k) In exercising its rights under this clause 11.5, ARTC may have regard to, and is entitled to rely on, information provided by and recommendations or opinions of the HVCCC on the impact of Non-Compliant Services, or the operation of Services complying with the New Service Assumptions (as applicable), on Coal Chain Capacity and Capacity.
(l) Nothing in this clause 11.5(e) -(k) affects ARTC’s entitlement to suspend or terminate a Train Path Schedule in accordance with clause 12 of this agreement.
Appears in 1 contract
Samples: Access Holder Agreement
Use of Non-Compliant Services. (a) (Request to temporarily use a Non-Compliant Service) ARTC will not unreasonably withhold its consent to a request from the Access Holder to operate a Non-Compliant Service for a Period (including a request from the Access Holder for an Operator to operate more than the number of Services specified to be operated by that Operator in a Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with three days notice of its intention to use or operate a Non-Compliant Service; and
(ii) ARTC is satisfied that the use or operation of the Non-Non- Compliant Service in that Period will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder. Where the Non-Compliant Service has the same Services Assumptions prescribed for that Train Path in the Train Path Schedule, then there is deemed to be no adverse impact.
(b) If ARTC consents to the use or operation of a Non-Compliant ServiceService and that Non-Compliant Service is outside of the Services Envelope, ARTC may (but is not required to) update the TOP Charges, and Innovation Charges and Efficiency Incentive Charges (as applicable) to be payable by the Access Holder to reflect the characteristics of the Non-Compliant Service used or operated by the Access Holder.
(c) (Permanent change to Service Assumptions) ARTC will not unreasonably withhold its consent to a variation of the Service Assumptions for a Train Path (including a variation of the number of Services specified to be operated by an Operator each Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with 30 days notice of the new service assumptions proposed by the Access Holder for the Train Path;
(ii) ARTC is satisfied that the use or operation of the Path Usages in accordance with the new service assumptions proposed by the Access Holder will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder;; and
(iii) the variation of the Service Assumptions does not lead to a reduction in TOP Charges, and Innovation Charges and Efficiency Incentive Charges (as applicable) that would otherwise be payable.
(d) Despite clause 11.5(c)(iii), ARTC will not unreasonably withhold its consent to a permanent change to the Service Assumptions for a Train Path that would lead to a reduction in TOP Charges if, in ARTC’s reasonable opinion reached in consultation with the HVCCC, the variation involves the transfer to a Service which provides for more efficient use of Capacity and Coal Chain Capacity.
(e) If the Service Assumptions applicable to a Train Path have been permanently amended under clause 11.5(c), the Access Holder agrees that the applicable Train Path Schedule will be amended to reflect the new Service Assumptions and the TOP Charges, and Innovation Charges and Efficiency Incentive Charges (as applicable) payable by the Access Holder under clause 5.2 5 will be updated to reflect the new Service Assumptions.
(e) (Consistent use of a Non-Compliant Service without consent) If the Access Holder consistently uses Non-Compliant Services and,
(i) the Access Holder has not sought and obtained consent from ARTC to use a Non-Compliant Service under this clause 11.5;
(ii) ARTC reasonably considers that the use or operation of the Non-Compliant Services has a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder; or
(iii) ARTC reasonably considers that there is a material difference in the TOP Charges, and Innovation Charges and Efficiency Incentive Charges (as applicable) paid by the Access Holder for those Path Usages and the TOP Charges, and Innovation Charges and Efficiency Incentive Charges that would otherwise be payable for those Path Usages had the Service Assumptions reflected the characteristics of the Non-Compliant Service or the Services used are Non- Compliant Services due to the train type used to operate the Services, ARTC may issue a warning notice requiring the Access Holder to use a Service which complies with the Service Assumptions in the applicable Train Path Schedule.
(f) ARTC will withdraw a warning notice provided under clause 11.5(e) if ARTC is reasonably satisfied that:
(i) the Access Holder had grounds for using a Non-Compliant Service; and
(ii) the Access Holder will not continue to use a Non-Compliant Service without ARTC’s consent (acting reasonably).
(g) If the Access Holder has received a warning notice under clause 11.5(e) (which has not been withdrawn) and if, after 14 days from the receipt of the warning notice, the Access Holder continues to use a Non-Compliant Service then ARTC may at its absolute discretion, on 30 days’ notice to the Access Holder, do one or more of the following:
(i) review and adjust the Service Assumptions in the applicable Train Path Schedule to reflect the characteristics of the Non-Compliant Service;
(ii) review and adjust the Annual Contracted Path Usages in the applicable Train Path Schedule including deleting the number of Path Usages from the relevant Train Path Schedule which ARTC reasonably considers equivalent to the difference in Capacity consumed by the Non-Compliant Service and the Capacity that would have been consumed had the Access Holder used a Service which complied with the applicable Service Assumptions; or
(iii) adjust the TOP Charges, and Innovation Charges and Efficiency Incentive Charges (as applicable) to be paid by the Access Holder having regard to:
(A) the characteristics of the Non-Compliant Service when compared with the Service Assumptions set out in the applicable Train Path Schedule; and
(B) the factors which impact on ARTC’s business and Coal Chain Capacity which ARTC is able to have regard to in formulating its Charges.
(h) To avoid doubt, the Access Holder’s obligation to pay TOP Charges, and Innovation Charges and Efficiency Incentive Charges (as applicable) will be updated to reflect the revisions to the Service Assumptions made under clause 11.5(g)(i).
(i) To avoid doubt, where a Path Usage is deleted from a Train Path Schedule under this clause 11.5:
(i) the Access Holder’s obligation to pay TOP Charges, and Innovation Charges and Efficiency Incentive Charges (as applicable) in respect of that deleted Path Usage is unaffected; and
(ii) the Tolerance available to the Access Holder, calculated in accordance with clause 3.3 will be reviewed and adjusted to reflect the Access Holder’s reduced entitlement to Path Usages in the affected Periods.
(j) ARTC is not entitled to take any of the steps set out in clause 11.5(g) after one year from the date of the warning notice but this does not invalidate any steps taken before this time.
(k) In exercising its rights under this clause 11.5, ARTC may have regard to, and is entitled to rely on, information provided by and recommendations or opinions of, the HVCCC on the impact of Non- Compliant Services, or the operation of Services complying with the new Service Assumptions (as applicable), on Coal Chain Capacity and Capacity.
(l) Nothing in this clause 11.5(f) - (l) affects ARTC’s entitlement to suspend or terminate a Train Path Schedule in accordance with clause 12 of this agreement.
Appears in 1 contract
Samples: Access Holder Agreement
Use of Non-Compliant Services. (a) (Request to temporarily use a Non-Compliant Service) ARTC will not unreasonably withhold its consent to a request from the Access Holder to operate a Non-Compliant Service for a Period (including a request from the Access Holder for an Operator to operate more than the number of Services specified to be operated by that Operator in a Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with three days notice of its intention to use or operate a Non-Compliant Service; and
(ii) ARTC is satisfied that the use or operation of the Non-Non- Compliant Service in that Period will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder. Where the Non-Compliant Service has the same Services Assumptions prescribed for that Train Path in the Train Path Schedule, then there is deemed to be no adverse impact.
(b) If ARTC consents to the use or operation of a Non-Compliant ServiceService and that Non-Compliant Service is outside of the Services Envelope, ARTC may (but is not required to) update the TOP Charges and Innovation Charges (as applicable) to be payable by the Access Holder to reflect the characteristics of the Non-Compliant Service used or operated by the Access Holder.
(c) (Permanent change to Service Assumptions) ARTC will not unreasonably withhold its consent to a variation of the Service Assumptions for a Train Path (including a variation of the number of Services specified to be operated by an Operator each Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with 30 days notice of the new service assumptions proposed by the Access Holder for the Train Path;
(ii) ARTC is satisfied that the use or operation of the Path Usages in accordance with the new service assumptions proposed by the Access Holder will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder;; and
(iii) the variation of the Service Assumptions does not lead to a reduction in TOP Charges and Innovation Charges (as applicable) that would otherwise be payable.
(d) Despite clause 11.5(c)(iii), ARTC will not unreasonably withhold its consent to a permanent change to the Service Assumptions for a Train Path that would lead to a reduction in TOP Charges if, in ARTC’s reasonable opinion reached in consultation with the HVCCC, the variation involves the transfer to a Service which provides for more efficient use of Capacity and Coal Chain Capacity.
(e) If the Service Assumptions applicable to a Train Path have been permanently amended under clause 11.5(c), the Access Holder agrees that the applicable Train Path Schedule will be amended to reflect the new Service Assumptions and the TOP Charges and Innovation Charges (as applicable) payable by the Access Holder under clause 5.2 5 will be updated to reflect the new Service Assumptions.
(e) (Consistent use of a Non-Compliant Service without consent) If the Access Holder consistently uses Non-Compliant Services and,
(i) the Access Holder has not sought and obtained consent from ARTC to use a Non-Compliant Service under this clause 11.5;
(ii) ARTC reasonably considers that the use or operation of the Non-Compliant Services has a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder; or
(iii) ARTC reasonably considers that there is a material difference in the TOP Charges and Innovation Charges (as applicable) paid by the Access Holder for those Path Usages and the TOP Charges and Innovation Charges that would otherwise be payable for those Path Usages had the Service Assumptions reflected the characteristics of the Non- Compliant Service or the Services used are Non-Compliant Services due to the train type used to operate the Services, ARTC may issue a warning notice requiring the Access Holder to use a Service which complies with the Service Assumptions in the applicable Train Path Schedule.
(f) ARTC will withdraw a warning notice provided under clause 11.5(e) if ARTC is reasonably satisfied that:
(i) the Access Holder had grounds for using a Non-Compliant Service; and
(ii) the Access Holder will not continue to use a Non-Compliant Service without ARTC’s consent (acting reasonably).
(g) If the Access Holder has received a warning notice under clause 11.5(e) (which has not been withdrawn) and if, after 14 days from the receipt of the warning notice, the Access Holder continues to use a Non-Compliant Service then ARTC may at its absolute discretion, on 30 days’ notice to the Access Holder, do one or more of the following:
(i) review and adjust the Service Assumptions in the applicable Train Path Schedule to reflect the characteristics of the Non-Compliant Service;
(ii) review and adjust the Annual Contracted Path Usages in the applicable Train Path Schedule including deleting the number of Path Usages from the relevant Train Path Schedule which ARTC reasonably considers equivalent to the difference in Capacity consumed by the Non-Compliant Service and the Capacity that would have been consumed had the Access Holder used a Service which complied with the applicable Service Assumptions; or
(iii) adjust the TOP Charges and Innovation Charges (as applicable) to be paid by the Access Holder having regard to:
(A) the characteristics of the Non-Compliant Service when compared with the Service Assumptions set out in the applicable Train Path Schedule; and
(B) the factors which impact on ARTC’s business and Coal Chain Capacity which ARTC is able to have regard to in formulating its Charges.
(h) To avoid doubt, the Access Holder’s obligation to pay TOP Charges and Innovation Charges (as applicable) will be updated to reflect the revisions to the Service Assumptions made under clause 11.5(g)(i).
(i) To avoid doubt, where a Path Usage is deleted from a Train Path Schedule under this clause 11.5:
(i) the Access Holder’s obligation to pay TOP Charges and Innovation Charges (as applicable) in respect of that deleted Path Usage is unaffected; and
(ii) the Tolerance available to the Access Holder, calculated in accordance with clause 3.3 will be reviewed and adjusted to reflect the Access Holder’s reduced entitlement to Path Usages in the affected Periods.
(j) ARTC is not entitled to take any of the steps set out in clause 11.5(g) after one year from the date of the warning notice but this does not invalidate any steps taken before this time.
(k) In exercising its rights under this clause 11.5, ARTC may have regard to, and is entitled to rely on, information provided by and recommendations or opinions of, the HVCCC on the impact of Non- Compliant Services, or the operation of Services complying with the new Service Assumptions (as applicable), on Coal Chain Capacity and Capacity.
(l) Nothing in this clause 11.5(f) - (l) affects ARTC’s entitlement to suspend or terminate a Train Path Schedule in accordance with clause 12 of this agreement.
Appears in 1 contract
Samples: Access Holder Agreement
Use of Non-Compliant Services. (a) (Request to temporarily use a Non-Compliant Service) ARTC will not unreasonably withhold its consent to a request from the Access Holder to operate a Non-Compliant Service for a Period (including a request from the Access Holder for an Operator to operate more than the number of Services specified to be operated by that Operator in a Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with three days notice of its intention to use or operate a Non-Compliant Service; and
(ii) ARTC is satisfied that the use or operation of the Non-Non- Compliant Service in that Period will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder. Where the Non-Compliant Service has the same Services Assumptions prescribed for that Train Path in the Train Path Schedule, then there is deemed to be no adverse impact.
(b) If ARTC consents to the use or operation of a Non-Compliant ServiceService and that Non-Compliant Service is outside of the Services Envelope, ARTC may (but is not required to) update the TOP Charges and Innovation Charges (as applicable) to be payable by the Access Holder to reflect the characteristics of the Non-Compliant Service used or operated by the Access Holder.
(c) (Permanent change to Service Assumptions) ARTC will not unreasonably withhold its consent to a variation of the Service Assumptions for a Train Path (including a variation of the number of Services specified to be operated by an Operator each Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with 30 days notice of the new service assumptions proposed by the Access Holder for the Train Path;
(ii) ARTC is satisfied that the use or operation of the Path Usages in accordance with the new service assumptions proposed by the Access Holder will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder;; and
(iii) the variation of the Service Assumptions does not lead to a reduction in TOP Charges and Innovation Charges (as applicable) that would otherwise be payable.
(dpayable.(d) Despite clause 11.5(c)(iii), ARTC will not unreasonably withhold its consent to a permanent change to the Service Assumptions for a Train Path that would lead to a reduction in TOP Charges if, in ARTC’s reasonable opinion reached in consultation with the HVCCC, the variation involves the transfer to a Service which provides for more efficient use of Capacity and Coal Chain Capacity.
(ed) If (e)If the Service Assumptions applicable to a Train Path have been permanently amended under clause 11.5(c), the Access Holder agrees that the applicable Train Path Schedule will be amended to reflect the new Service Assumptions and the TOP Charges and Innovation Charges (as applicable) payable by the Access Holder under clause 5.2 will be updated to reflect the new Service Assumptions.
(e) (f)(Consistent use of a Non-Compliant Service without consent) If the Access Holder consistently uses Non-Compliant Services and,
(i) the Access Holder has not sought and obtained consent from ARTC to use a Non-Compliant Service under this clause 11.5;
(ii) ARTC reasonably considers that the use or operation of the Non-Compliant Services has a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder; or
(iii) ARTC reasonably considers that there is a material difference in the TOP Charges and Innovation Charges (as applicable) paid by the Access Holder for those Path Usages and the TOP Charges and Innovation Charges that would otherwise be payable for those Path Usages had the Service Assumptions reflected the characteristics of the Non- Compliant Service or the Services used are Non-Compliant Services due to the train type used to operate the Services, ARTC may issue a warning notice requiring the Access Holder to use a Service which complies with the Service Assumptions in the applicable Train Path Schedule.
(f) (g)ARTC will withdraw a warning notice provided under clause 11.5(fe) if ARTC is reasonably satisfied that:
(i) the Access Holder had grounds for using a Non-Compliant Service; and
(ii) the Access Holder will not continue to use a Non-Compliant Service without ARTC’s consent (acting reasonably).
Appears in 1 contract
Samples: Access Holder Agreement
Use of Non-Compliant Services. (a) (Request to temporarily use a Non-Compliant Service) ARTC will not unreasonably withhold its consent to a request from the Access Holder to operate a Non-Compliant Service for a Period (including a request from the Access Holder for an Operator to operate more than the number of Services specified to be operated by that Operator in a Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with three days notice of its intention to use or operate a Non-Compliant Service; and
(ii) ARTC is satisfied that the use or operation of the Non-Non- Compliant Service in that Period will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder. Where the Non-Compliant Service has the same Services Assumptions prescribed for that Train Path in the Train Path Schedule, then there is deemed to be no adverse impact.
(b) If ARTC consents to the use or operation of a Non-Compliant ServiceService and that Non-Compliant Service is outside of the Services Envelope, ARTC may (but is not required to) update the TOP Charges, Innovation Charges and Efficiency Incentive Charges (as applicable) to be payable by the Access Holder to reflect the characteristics of the Non-Compliant Service used or operated by the Access Holder.
(c) (Permanent change to Service Assumptions) ARTC will not unreasonably withhold its consent to a variation of the Service Assumptions for a Train Path (including a variation of the number of Services specified to be operated by an Operator each Period in the Train Path Schedule) if:
(i) the Access Holder provides ARTC with 30 days notice of the new service assumptions proposed by the Access Holder for the Train Path;
(ii) ARTC is satisfied that the use or operation of the Path Usages in accordance with the new service assumptions proposed by the Access Holder will not have a material adverse impact on Capacity, Coal Chain Capacity or the Capacity entitlement of another access holder;; and
(iii) the variation of the Service Assumptions does not lead to a reduction in TOP Charges, Innovation Charges and Efficiency Incentive Charges (as applicable) that would otherwise be payable.
(d) Despite clause 11.5(c)(iii), ARTC will not unreasonably withhold its consent to a permanent change to the Service Assumptions for a Train Path that would lead to a reduction in TOP Charges if, in ARTC’s reasonable opinion reached in consultation with the HVCCC, the variation involves the transfer to a Service which provides for more efficient use of Capacity and Coal Chain Capacity.
(e) (d) If the Service Assumptions applicable to a Train Path have been permanently amended under clause 11.5(c), the Access Holder agrees that the applicable Train Path Schedule will be amended to reflect the new Service Assumptions and the TOP Charges, Innovation Charges and Efficiency Incentive Charges (as applicable) payable by the Access Holder under clause 5.2 will be updated to reflect the new Service Assumptions.
(f) (e) (
Appears in 1 contract
Samples: Access Holder Agreement
