Common use of Management of Incident Response Clause in Contracts

Management of Incident Response. (a) Aurizon Network is responsible for the overall coordination and management of the response to an Incident (including notifying all relevant emergency services) so that Restoration and Recovery are effected as soon as practicable. (b) If an Incident occurs, the Operator: (i) is, subject to clause 22.6(c), responsible for effecting Recovery and Retrieval; (ii) must: (A) make arrangements to effect Recovery and Retrieval within three hours after the Incident occurred; (B) cooperate with and assist Aurizon Network in Restoration; and (C) effect timely Recovery and Retrieval within 12 hours after the Incident occurred (or within such other period as the Parties may agree) in accordance with the Emergency Response Plan. (c) If an Incident occurs and Aurizon Network reasonably believes that it will be able to effect Recovery more quickly than the Operator, then Aurizon Network may, subject to using reasonable efforts to consult with the Operator: (i) take such action as is reasonably necessary (including the use of a Railway Operator’s Rollingstock to clear the Operator’s Rollingstock) to effect Recovery; and (ii) recover such reasonable costs incurred by Aurizon Network in doing so. Subject to clause 8.4, the Operator must, upon demand, pay to Aurizon Network such reasonable costs incurred by Aurizon Network. (d) If an Incident occurs, then the Operator must, as soon as reasonably practicable, notify Aurizon Network and: (i) take action as soon as reasonably practicable in respect of an Incident to prevent or minimise injury to any person or damage to any property (including harm to the Environment) where there is an imminent risk of such injury or damage, but otherwise take no action without the prior approval of Aurizon Network (not to be unreasonably withheld); and (ii) comply with the directions of Aurizon Network in respect of the coordination and management of Recovery, Retrieval and Restoration. (e) Subject to clause 22.6(f), each Party must use all reasonable endeavours to ensure that any property damage, actual or potential harm to the Environment or delays to the recommencement of Train Movements arising from Restoration or Recovery are minimised. (f) Aurizon Network may, subject to Aurizon Network using reasonable efforts to first consult with the Operator about such action, take such action (including to give directions to the Operator and the Operator’s Staff and to remove or require the Operator to remove any of its Rollingstock from the Nominated Network) as Aurizon Network considers reasonably necessary to recommence Train Movements as soon as practicable and, subject to clause 22.6(i), Aurizon Network will not be liable for any damage to or loss of freight or Rollingstock caused by such action. (g) Where: (i) Aurizon Network seeks to remove, or require the Operator to remove, any Relevant Rollingstock from the Nominated Network under clause 22.6(f); and (ii) such removal would reasonably be expected to cause material damage to or materially increase the damage to the Relevant Rollingstock, then Aurizon Network and the Operator must: (iii) use all reasonable efforts to consult and agree on the removal of the Relevant Rollingstock as soon as reasonably practicable and, in any event, within six hours after the occurrence of the Incident or such longer period as the Parties may agree; and (iv) if the Parties do not consult or reach agreement within the period referred to in clause 22.6(g)(iii), then the Parties must refer the decision to the chief executive officer of Aurizon Network and the chief executive officer of the Operator who must in good faith seek to agree a course of action within two hours of the referral to them or such longer period as the Parties may agree. (h) If the chief executive officer of Aurizon Network and the chief executive officer of the Operator do not consult or do not agree within the specified period in clause 22.6(g)(iv), then Aurizon Network must refer its proposed course of action with respect to the removal of the Relevant Rollingstock to an Expert who must determine in accordance with clause 32.3 whether or not, having regard to: (i) the potential to further damage the Relevant Rollingstock or cause damage to any property (including harm to the Environment); (ii) the impact on Aurizon Network’s ability to effect Restoration; and (iii) the time critical nature of the decision, the course of action proposed by Aurizon Network is reasonable. (i) Following completion of the process set out in clauses 22.6(g) and 22.6(h) (as applicable): (i) Aurizon Network: (A) is entitled to progress with the proposed course of action; and (B) will not be liable for any damage to or loss of freight or Rollingstock caused by such action; and (ii) the Operator is solely liable for, and releases, indemnifies and will keep indemnified Aurizon Network and its directors and Aurizon Network’s Staff against all Claims of any nature suffered or incurred by, or made or brought against, Aurizon Network, its directors or Aurizon Network’s Staff in respect of such action, unless the Expert determines that Aurizon Network’s proposed course of action is not reasonable. (j) Aurizon Network may, where it is reasonable and practicable in the circumstances to do so, issue a Train Control Direction to the Operator to provide assistance with clearing any Network Incident including providing Rollingstock, where appropriate, for use by or under the direction of Aurizon Network and undertaking any variation in the operation of a Train Service (including coupling its Rollingstock with Rollingstock of Aurizon Network or another Railway Operator). The Operator must comply with any such Train Control Direction. The Operator may recover from Aurizon Network such reasonable costs incurred in complying with this clause 22.6(j) as agreed or, failing agreement within 20 Business Days after notice by the Operator to Aurizon Network, as determined by an Expert in accordance with clause 32.3. (k) The assessment of the costs to be recovered under clause 22.6(c) or clause 22.6(j) for the use of Rollingstock must have regard to any industry or other agreement covering such costs and any payments facilitated by such agreement. (l) Except as otherwise provided in this Agreement, Aurizon Network is not liable to the Operator and the Operator must not make any Claim against Aurizon Network, its director and/or Aurizon Network’s Staff for any delays, cancellation of Train Services or Claims suffered or incurred by, or made or brought by or against, the Operator as a result of complying with a request by Aurizon Network pursuant to clause 22.6(j).

Management of Incident Response. (a) Aurizon Network is responsible for the overall coordination and management of the response to an Incident (including notifying all relevant emergency services) so that Restoration and Recovery are effected as soon as practicable. (b) If an Incident occurs, the Operator: (i) is, subject to clause 22.6(c), responsible for effecting Recovery and Retrieval; (ii) must: (A) make arrangements to effect Recovery and Retrieval within three hours after the Incident occurred; (B) cooperate with and assist Aurizon Network in Restoration; and (C) effect timely Recovery and Retrieval within 12 hours after the Incident occurred (or within such other period as the Parties may agree) in accordance with the Emergency Response Plan. (c) If an Incident occurs and Aurizon Network reasonably believes that it will be able to effect Recovery more quickly than the Operator, then Aurizon Network may, subject to using reasonable efforts to consult with the Operator: (i) take such action as is reasonably necessary (including the use of a Railway Operator’s Rollingstock to clear the Operator’s Rollingstock) to effect Recovery; and (ii) recover such reasonable costs incurred by Aurizon Network in doing so. Subject to clause 8.4, the The Operator must, upon demand, pay to Aurizon Network such reasonable costs incurred by Aurizon Network. (d) If an Incident occurs, then the Operator must, as soon as reasonably practicable, notify Aurizon Network and: (i) take action as soon as reasonably practicable in respect of an Incident to prevent or minimise injury to any person or damage to any property (including harm to the EnvironmentEnvironmental) where there is an imminent risk of such injury or damage, but otherwise take no action without the prior approval of Aurizon Network (not to be unreasonably withheld); and (ii) comply with the directions of Aurizon Network in respect of the coordination and management of Recovery, Retrieval and Restoration. (e) Subject to clause 22.6(f), each Party must use all reasonable endeavours to ensure that any property damage, actual or potential harm to the Environment or delays to the recommencement of Train Movements arising from Restoration or Recovery are minimised. (f) Aurizon Network may, subject to Aurizon Network using reasonable efforts to first consult with the Operator about such action, take such action (including to give directions to the Operator and the Operator’s Staff and to remove or require the Operator to remove any of its Rollingstock from the Nominated Network) as Aurizon Network considers reasonably necessary to recommence Train Movements as soon as practicable and, subject to clause 22.6(i), Aurizon Network will not be liable for any damage to or loss of freight or Rollingstock caused by such action. (g) Where: (i) Aurizon Network seeks to remove, or require the Operator to remove, any Relevant Rollingstock from the Nominated Network under clause 22.6(f); and (ii) such removal would reasonably be expected to cause material damage to or materially increase the damage to the Relevant Rollingstock, then Aurizon Network and the Operator must: (iii) use all reasonable efforts to consult and agree on the removal of the Relevant Rollingstock as soon as reasonably practicable and, in any event, within six hours after the occurrence of the Incident or such longer period as the Parties may agree; and (iv) if the Parties do not consult or reach agreement within the period referred to in clause 22.6(g)(iii), then the Parties must refer the decision to the chief executive officer of Aurizon Network and the chief executive officer of the Operator who must in good faith seek to agree a course of action within two hours of the referral to them or such longer period as the Parties may agree. (h) If the chief executive officer of Aurizon Network and the chief executive officer of the Operator do not consult or do not agree within the specified period in clause 22.6(g)(iv), then Aurizon Network must refer its proposed course of action with respect to the removal of the Relevant Rollingstock to an Expert who must determine in accordance with clause 32.3 whether or not, having regard to: (i) the potential to further damage the Relevant Rollingstock or cause damage to any property (including harm to the Environment); (ii) the impact on Aurizon Network’s ability to effect Restoration; and (iii) the time critical nature of the decision, the course of action proposed by Aurizon Network is reasonable. (i) Following completion of the process set out in clauses 22.6(g) and 22.6(h) (as applicable): (i) Aurizon Network: (A) is entitled to progress with the proposed course of action; and (B) will not be liable for any damage to or loss of freight or Rollingstock caused by such action; and (ii) the Operator is solely liable for, and releases, indemnifies and will keep indemnified Aurizon Network and its directors and Aurizon Network’s Staff against all Claims of any nature suffered or incurred by, or made or brought against, Aurizon Network, its directors or Aurizon Network’s Staff in respect of such action, unless the Expert determines that Aurizon Network’s proposed course of action is not reasonable. (j) Aurizon Network may, where it is reasonable and practicable in the circumstances to do so, issue a Train Control Direction to the Operator to provide assistance with clearing any Network Incident including providing Rollingstock, where appropriate, for use by or under the direction of Aurizon Network and undertaking any variation in the operation of a Train Service (including coupling its Rollingstock with Rollingstock of Aurizon Network or another Railway Operator). The Operator must comply with any such Train Control Direction. The Operator may recover from Aurizon Network such reasonable costs incurred in complying with this clause 22.6(j) as agreed or, failing agreement within 20 Business Days after notice by the Operator to Aurizon Network, as determined by an Expert in accordance with clause 32.3. (k) The assessment of the costs to be recovered under clause 22.6(c) or clause 22.6(j) for the use of Rollingstock must have regard to any industry or other agreement covering such costs and any payments facilitated by such agreement. (l) Except as otherwise provided in this Agreement, Aurizon Network is not liable to the Operator and the Operator must not make any Claim against Aurizon Network, its director and/or Aurizon Network’s Staff for any delays, cancellation of Train Services or Claims suffered or incurred by, or made or brought by or against, the Operator as a result of complying with a request by Aurizon Network pursuant to clause 22.6(j).