Weighbridges and Overload Detectors. (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing. (b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that: (i) such Weighbridge or Overload Detector is available; and (ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains. (c) Aurizon Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator. (d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage. (e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is paying all Access Charges] (f) In the event that any Wagon operated by the Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon Network may: (i) [charge the Operator (and the Operator must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and] (ii) impose any Operational Constraints which Aurizon Network considers to be reasonable in the circumstances. (g) [The Weighbridges to be used by Aurizon Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.] (h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to: (i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon Network); (ii) provide such record to the party loading the Trains; and (iii) provide such record to the other Party within fourteen (14) days of the end of each Month. (i) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]. Testing will be carried out in accordance with the following procedure: (i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration. (ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties. (iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i). (iv) The cost of conducting such test shall be met by: (A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or (B) the Party giving notice under this Clause 3(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2. (j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement. (k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement.
Appears in 6 contracts
Samples: Train Operations Agreement, Train Operations Agreement, Train Operations Agreement
Weighbridges and Overload Detectors. [Square bracketed text in (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is only paying all Access TOP Charges]
(fa) In the event that any Wagon operated by the an Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon Network may:
(i) [charge the Operator End User (and the Operator End User must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon Network considers to be reasonable in the circumstancescircumstances in accordance with the relevant Train Operations Agreement. [Aurizon Network will include the Overload Charge in the invoice for Access Charges for the Billing Period immediately following such determination for payment by the End User.]
(gb) [The Weighbridges to be used by Aurizon Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.;]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(ic) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]2. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i3.8(c) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access this Agreement/Part 5 of Schedule 33 of this Agreement and Part 5 of Schedule 3 of each Train Operations Agreement]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i3.8(c).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i3.8(c) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(jd) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access a relevant Train Operations Agreement.
(ke) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i3.8(c) or Clause 3.8(c3(i) of the End User Access General Conditions of Contract of a Train Operations Agreement.
Appears in 4 contracts
Samples: End User Access Agreement, End User Access Agreement, End User Access Agreement
Weighbridges and Overload Detectors. (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Access Holder must ensure that the Operator must use uses reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 22 ) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon Network QR may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the OperatorAccess Holder.
(d) The Access Holder must ensure that the Operator must use uses reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Access Holder must cause the Operator must to reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon Network QR may direct a Train to a specific siding or location to allow such reduction and the Access Holder must cause the Operator shall to comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is paying all Access Charges]
(f) In the event that any Wagon operated by the Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon Network may:
(i) [charge the Operator (and the Operator must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon Network considers to be reasonable in the circumstances.
(g) [The Weighbridges to be used by Aurizon Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(i) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement.
Appears in 2 contracts
Samples: Access Agreement, Access Agreement
Weighbridges and Overload Detectors. (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon QR Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon QR Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is paying all Access Charges].
(f) In the event that any Wagon operated by the Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon QR Network may:
(i) [charge the Operator (and the Operator must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon QR Network considers to be reasonable in the circumstances. QR Network will include the Overload Charge in the invoice for Access Charges for the Billing Period immediately following such determination for payment by the Operator.
(g) [The Weighbridges to be used by Aurizon QR Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon QR Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(i) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i2.7(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i2.7(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i2.7(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement2.7(i).
Appears in 2 contracts
Samples: Coal Access Agreement, Access Agreement
Weighbridges and Overload Detectors. (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Access Holder must ensure that the Operator must use uses reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon QR Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the OperatorAccess Holder.
(d) The Access Holder must ensure that the Operator must use uses reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Access Holder must cause the Operator must to reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon QR Network may direct a Train to a specific siding or location to allow such reduction and the Access Holder must cause the Operator shall to comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is paying all Access Charges].
(f) In the event that any Wagon operated by the Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon QR Network may:
(i) [charge the Operator Access Holder (and the Operator Access Holder must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon QR Network considers to be reasonable in the circumstances. QR Network will include the Overload Charge in the invoice for Access Charges for the Billing Period immediately following such determination for payment by the Access Holder.
(g) [The Weighbridges to be used by Aurizon QR Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator Access Holder must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon QR Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(i) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i2.7(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i2.7(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i2.7(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement2.7(i).
Appears in 2 contracts
Samples: Access Agreement, Access Agreement
Weighbridges and Overload Detectors. (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Access Holder must ensure that the Operator must use uses reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon Network QR may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the OperatorAccess Holder.
(d) The Access Holder must ensure that the Operator must use uses reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Access Holder must cause the Operator must to reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon Network QR may direct a Train to a specific siding or location to allow such reduction and the Access Holder must cause the Operator shall to comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is paying all Access Charges]
(f) In the event that any Wagon operated by the Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon Network may:
(i) [charge the Operator (and the Operator must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon Network considers to be reasonable in the circumstances.
(g) [The Weighbridges to be used by Aurizon Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(i) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement.
Appears in 2 contracts
Samples: Access Agreement, Access Agreement
Weighbridges and Overload Detectors. [Square bracketed text in (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is only paying all Access TOP Charges]
(fa) In the event that any Wagon operated by the an Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon Network may:
(i) [charge the Operator End User (and the Operator End User must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon Network considers to be reasonable in the circumstancescircumstances in accordance with the relevant Train Operations Agreement. [Aurizon Network will include the Overload Charge in the invoice for Access Charges for the Billing Period immediately following such determination for payment by the End User.]
(gb) [The Weighbridges to be used by Aurizon Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.;]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(ic) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]2. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i3.8(c) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3/Part 4 of Schedule 3 of the End User Access Agreement/and Part 5 of Schedule 33 of each Train Operations Agreement]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i3.8(c).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i3.8(c) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(ja) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this athis Agreement or the End User Access a relevant Train Operations Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement.
Appears in 1 contract
Samples: End User Access Agreement
Weighbridges and Overload Detectors. (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon Network QR may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon Network QR may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is paying all Access Charges].
(f) In the event that any Wagon operated by the Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon Network QR may:
(i) [charge the Operator (and the Operator must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon Network QR considers to be reasonable in the circumstances. QR will include the Overload Charge in the invoice for Access Charges for the Billing Period immediately following such determination for payment by the Operator.
(g) [The Weighbridges to be used by Aurizon Network QR in the calculation of Access Charges are those specified in Part 6A of Schedule 2.]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon NetworkQR);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(i) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i2.7(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i2.7(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i2.7(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement2.7(i).
Appears in 1 contract
Samples: Operator Access Agreement
Weighbridges and Overload Detectors. (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon QR Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon QR Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is paying all Access Charges]
(f) In the event that any Wagon operated by the Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon QR Network may:
(i) [charge the Operator (and the Operator must pay) an Overload Charge (in accordance with Part 6 of Schedule 3Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon QR Network considers to be reasonable in the circumstances.
(g) [The Weighbridges to be used by Aurizon QR Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2Schedule 2.]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon QR Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(i) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement.
Appears in 1 contract
Samples: Train Operations Agreement
Weighbridges and Overload Detectors. (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) (or the Operator if the End User is specified in Part 6 of Schedule 2 as being responsible for the Weighbridge or Overload Detector) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon QR Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon QR Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is paying all Access Charges]
(f) In the event that any Wagon operated by the Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon QR Network may:
(i) [charge the Operator (and the Operator must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon QR Network considers to be reasonable in the circumstances.. [QR Network will include the Overload Charge in the invoice for Access Charges for the
(g) [The Weighbridges to be used by Aurizon QR Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 (or the Operator if the End User is specified in Part 6 of Schedule 2 as being responsible for the Weighbridge or Overload Detector) must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon QR Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(i) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement.
Appears in 1 contract
Samples: Train Operations Agreement
Weighbridges and Overload Detectors. (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Operator‟s Trains.
(c) Aurizon QR Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon QR Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is paying all Access Charges].
(f) In the event that any Wagon operated by the Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon QR Network may:
(i) [charge the Operator (and the Operator must pay) an Overload Charge (in accordance with Part 6 of Schedule 3Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon QR Network considers to be reasonable in the circumstances. QR Network will include the Overload Charge in the invoice for Access Charges for the Billing Period immediately following such determination for payment by the Operator.
(g) [The Weighbridges to be used by Aurizon QR Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2Schedule 2.]
(h) Where the Operator’s Operator‟s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon QR Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(i) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3Schedule 3]. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2Schedule 2; or
(B) the Party giving notice under this Clause 3(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement).
Appears in 1 contract
Samples: Train Operations Agreement
Weighbridges and Overload Detectors. [Square bracketed text in (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is only paying all Access TOP Charges]
(fa) In the event that any Wagon operated by the an Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon QR Network may:
(i) [charge the Operator End User (and the Operator End User must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon QR Network considers to be reasonable in the circumstances.circumstances in accordance with the relevant Train Operations Agreement. [QR Network will include the Overload Charge in the invoice for Access Charges for the
(gb) [The Weighbridges weighbridgesWeighbridges to be used by Aurizon QR Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.;]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(ic) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]2. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 (or the End User if an Operator is specified in Part 6 of Schedule 2 as being responsible for the Weighbridge or Overload Detector) must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i3.8(c) and the [Access Charges Charges/TOP Charges] (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3/Part 4 of Schedule 3 of the End User Access Agreement/and Part 5 of Schedule 33 of each Train Operations Agreement]. The invoice for [Access Charges [issued under the End User Access AgreementCharges/TOP Charges] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of [Access Charges Charges/TOP Charges] arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i3.8(c).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that thatif the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or:
(1) QR Network if QR Network is specified in Part 6 of Schedule 2 as being responsible for the Weighbridge or Overload Detector; or
(2) the End User if the End User or an Operator is specified in Part 6 of Schedule 2 as being responsible for the Weighbridge or Overload Detector; or
(B) the Party giving notice under this Clause 3(i3.8(c) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(jd) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access a relevant Train Operations Agreement.
(ke) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i3.8(c) or Clause 3.8(c3(i) of the End User Access General Conditions of Contract of a Train Operations Agreement.
Appears in 1 contract
Samples: End User Access Agreement
Weighbridges and Overload Detectors. [Square bracketed text in (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is only paying all Access TOP Charges]
(fa) In the event that any Wagon operated by the an Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon Network may:
(i) [charge the Operator End User (and the Operator End User must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon Network considers to be reasonable in the circumstancescircumstances in accordance with the relevant Train Operations Agreement. [Aurizon Network will include the Overload Charge in the invoice for Access Charges for the Billing Period immediately following such determination for payment by the End User.]
(gb) [The Weighbridges to be used by Aurizon Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.;]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(ic) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]2. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i3.8(c) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3/Part 4 of Schedule 3 of the End User Access Agreement/and Part 5 of Schedule 33 of each Train Operations Agreement]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i3.8(c).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i3.8(c) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(jd) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access a relevant Train Operations Agreement.
(ke) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i3.8(c) or Clause 3.8(c3(i) of the End User Access General Conditions of Contract of a Train Operations Agreement.
Appears in 1 contract
Samples: End User Access Agreement
Weighbridges and Overload Detectors. [Square bracketed text in (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is only paying all Access TOP Charges]
(fa) In the event that any Wagon operated by the an Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon Network may:
(i) [charge the Operator End User (and the Operator End User must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon Network considers to be reasonable in the circumstancescircumstances in accordance with the relevant Train Operations Agreement. [Aurizon Network will include the Overload Charge in the invoice for Access Charges for the Billing Period immediately following such determination for payment by the End User.]
(gb) [The Weighbridges to be used by Aurizon Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.;]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(ic) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]2. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement.
Appears in 1 contract
Samples: End User Access Agreement
Weighbridges and Overload Detectors. (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon QR Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon QR Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is paying all Access Charges]
(f) In the event that any Wagon operated by the Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon Network may:
(i) [charge the Operator (and the Operator must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon Network considers to be reasonable in the circumstances.
(g) [The Weighbridges to be used by Aurizon Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(i) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement.
Appears in 1 contract
Samples: Operator Access Agreement
Weighbridges and Overload Detectors. [Square bracketed text in (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is only paying all Access TOP Charges]
(fa) In the event that any Wagon operated by the an Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon Network Queensland Rail may:
(i) [charge the Operator End User (and the Operator End User must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon Network Queensland Rail considers to be reasonable in the circumstancescircumstances in accordance with the relevant Train Operations Agreement. [Queensland Rail will include the Overload Charge in the invoice for Access Charges for the Billing Period immediately following such determination for payment by the End User.]
(gb) [The Weighbridges to be used by Aurizon Network Queensland Rail in the calculation of Access Charges are those specified in Part 6A of Schedule 2.;]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(ic) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]2. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement.
Appears in 1 contract
Samples: End User Access Agreement
Weighbridges and Overload Detectors. [Square bracketed text in (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is only paying all Access TOP Charges]
(fa) In the event that any Wagon operated by the an Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon QR Network may:
(i) [charge the Operator End User (and the Operator End User must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon QR Network considers to be reasonable in the circumstancescircumstances in accordance with the relevant Train Operations Agreement. [QR Network will include the Overload Charge in the invoice for Access Charges for the Billing Period immediately following such determination for payment by the End User.]
(gb) [The Weighbridges weighbridges to be used by Aurizon QR Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.;]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(ic) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]2. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i3.8(c) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3/Part 4 of Schedule 3 of the End User Access Agreement/and Part 5 of Schedule 33 of each Train Operations Agreement]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i3.8(c).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i3.8(c) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(jd) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access a relevant Train Operations Agreement.
(ke) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i3.8(c) or Clause 3.8(c3(i) of the End User Access General Conditions of Contract of a Train Operations Agreement.
Appears in 1 contract
Samples: End User Access Agreement
Weighbridges and Overload Detectors.
(a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon QR Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon QR Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is paying all Access Charges].
(f) In the event that any Wagon operated by the Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon QR Network may:
(i) [charge the Operator (and the Operator must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon QR Network considers to be reasonable in the circumstances. QR Network will include the Overload Charge in the invoice for Access Charges for the Billing Period immediately following such determination for payment by the Operator.
(g) [The Weighbridges to be used by Aurizon QR Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon QR Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(i) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i2.7(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i2.7(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i2.7(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement2.7(i).
Appears in 1 contract
Samples: Access Agreement
Weighbridges and Overload Detectors. (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Access Holder must ensure that the Operator must use uses reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon QR Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the OperatorAccess Holder.
(d) The Access Holder must ensure that the Operator must use uses reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Access Holder must cause the Operator must to reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon QR Network may direct a Train to a specific siding or location to allow such reduction and the Access Holder must cause the Operator shall to comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is paying all Access Charges]
(f) In the event that any Wagon operated by the Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon Network may:
(i) [charge the Operator (and the Operator must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon Network considers to be reasonable in the circumstances.
(g) [The Weighbridges to be used by Aurizon Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(i) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement.
Appears in 1 contract
Samples: Access Agreement
Weighbridges and Overload Detectors. (a) Where an operational Weighbridge or Overload Detector is located en route between Origin and Destination the Operator must use reasonable endeavours to operate its Trains over such Weighbridge or Overload Detector in a manner to facilitate weighing.
(b) Where a Weighbridge or Overload Detector is located en route between Origin and Destination, the Party responsible for that Weighbridge or Overload Detector (as specified in Part 6 of Schedule 2) must use reasonable endeavours to ensure that:
(i) such Weighbridge or Overload Detector is available; and
(ii) Trains are operated in a manner that the Weighbridge or Overload Detector weighs the Operator’s Trains.
(c) Aurizon QR Network may vary at any time the numbers and locations of Weighbridges and Overload Detectors, subject to providing reasonable notice to the Operator.
(d) The Operator must use reasonable endeavours to ensure that the mass of any Wagon or Train operated by it under this Agreement does not exceed the relevant Maximum Allowable Gross Tonnage.
(e) In the event that any Wagon or Train operated by the Operator is determined by a Weighbridge or Overload Detector to be in excess of the relevant Maximum Allowable Gross Tonnage, the Operator must reduce the gross mass to a level below the relevant Maximum Allowable Gross Tonnage. Aurizon QR Network may direct a Train to a specific siding or location to allow such reduction and the Operator shall comply with such direction. [Bracketed text in (f) and (g) to be deleted where the End User is paying all Access Charges].
(f) In the event that any Wagon operated by the Operator is determined to be in excess of the relevant Maximum Desirable Gross Tonnage, Aurizon QR Network may:
(i) [charge the Operator (and the Operator must pay) an Overload Charge (in accordance with Part 6 of Schedule 3) in respect of that Wagon; and]
(ii) impose any Operational Constraints which Aurizon QR Network considers to be reasonable in the circumstances. QR Network will include the Overload Charge in the invoice for Access Charges for the Billing Period immediately following such determination for payment by the Operator.
(g) [The Weighbridges to be used by Aurizon QR Network in the calculation of Access Charges are those specified in Part 6A of Schedule 2.]
(h) Where the Operator’s Trains are weighed by an operational Weighbridge or Overload Detector, the Party responsible for the Weighbridge or Overload Detector as specified in Part 6B of Schedule 2 must use reasonable endeavours to:
(i) keep a record of the gross mass of each loaded Wagon and Train (and the Operator must use reasonable endeavours to ensure such information is obtained from the operator of the Weighbridge or Overload Detector where the Weighbridge or Overload Detector is not owned or controlled by Aurizon QR Network);
(ii) provide such record to the party loading the Trains; and
(iii) provide such record to the other Party within fourteen (14) days of the end of each Month.
(i) If either Party reasonably believes that any Weighbridge or Overload Detector may be inaccurate, that Party may by notice to the other Party require the accuracy of such Weighbridge or Overload Detector to be tested, and the Weighbridge or Overload Detector shall be deemed to have malfunctioned from the date of such notice until such testing has been carried out and/or the Weighbridge or Overload Detector has been recalibrated and the mass will be determined in accordance with [Part 2 of Schedule 3 of the End User Access Agreement/Part 2 of Schedule 3]. Testing will be carried out in accordance with the following procedure:
(i) As soon as reasonably practicable the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 must ensure that a suitably qualified person conducts a test of the calibration of the Weighbridge or Overload Detector and makes any adjustments required to correct the calibration.
(ii) Except in the case of manifest error or fraud, the determination of the person conducting the test will be final and binding on the Parties.
(iii) Where the person conducting the test determines that the Weighbridge or Overload Detector is measuring within the tolerances specified in Part 6 of Schedule 2, the Weighbridge or Overload Detector will be treated as having been measuring accurately from the date on which the relevant notice was given pursuant to this Clause 3(i) and the Access Charges (including any Overload Charge) will be determined from that date according to [Part 5 of Schedule 3 of the End User Access Agreement/Part 5 of Schedule 3]. The invoice for Access Charges [issued under the End User Access Agreement] in respect of the Billing Period following such determination will be adjusted to appropriately account for the difference in payment of Access Charges arising from having treated the Weighbridge or Overload Detector as malfunctioning pursuant to this Clause 3(i).
(iv) The cost of conducting such test shall be met by:
(A) the Party responsible for the Weighbridge or Overload Detector as specified in Part 6 of Schedule 2 in the event that the Weighbridge or Overload Detector is determined to be not measuring within the tolerances specified in Part 6 of Schedule 2; or
(B) the Party giving notice under this Clause 3(i) in the event that the Weighbridge or Overload Detector is determined to be measuring within the tolerances specified in Part 6 of Schedule 2.
(j) Notwithstanding any other provision in this Agreement, neither Party will be liable to the other for any damage, loss, cost or expense that the other may suffer or incur as a result of that Party, in good faith, acting on the basis of any mass determined in accordance with this Agreement or the End User Access Agreement.
(k) Notwithstanding any other provision in this Agreement, neither Party shall have any Claim against the other Party as a result of or arising from any delay to or cancellation of Train Services as a result of the operation of Clause 3(i) or Clause 3.8(c) of the End User Access Agreement).
Appears in 1 contract
Samples: Train Operations Agreement