“otherwise” and words following “other” shall not be limited by any foregoing words where a wider construction is possible; the words “including” and “in particular” shall be construed as being by way of illustration or emphasis and shall not limit or prejudice the generality of any foregoing words; words and expressions defined in the Railways Act 1993, the Railways and Other Guided Transport Systems (Safety) Regulations 2006 and Network Rail’s network licence shall, unless otherwise defined in this contract, have the same meanings in this contract; any reference to the term “possession”, either by itself or as part of any composite definition, shall be construed as a reference to a Restriction of Use; words and expressions defined in the Network Code shall have the same meanings in this contract; if there is any conflict of interpretation between this contract and the Network Code, the Network Code shall prevail; references to “the Agreement” or “this Agreement” shall be construed as references to “the contract” or “this contract”; and if there is any conflict of interpretation between this contract (not including the Traction Electricity Rules) and the Traction Electricity Rules, the following order of precedence shall apply: (1) the Traction Electricity Rules; and (2) this contract (not including the Traction Electricity Rules). 1.3 Indemnities Indemnities provided for in this contract are continuing indemnities in respect of the Relevant Losses to which they apply, and hold the indemnified party harmless on an after tax basis. 1.4 Schedules The Schedules 1 and 3 to this contract shall have effect. 2. NETWORK CODE 2.1 Incorporation The Network Code is incorporated in and forms part of this contract. 2.2 Modifications to the Network Code If the Network Code is modified at any time, Schedule 10 shall have effect.
18.7 Contracts (Rights of Third Parties) Act 1999 18.7.1 Application to third parties Save as provided in this Clause 18.7 or as expressly provided elsewhere in this contract, no person who is not a party to this contract shall have any right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this contract. 18.7.2 Application to the Office of Rail and Rail ORR shall have the right under the Contracts (Rights of Third Parties) Act 1999 to enforce directly such rights as have been granted to it under this contract. 18.7.3 Contract amendments Subject to Clause 18.2, and with the exception of the Freight Customer Access Contract, Network Rail and the Train Operator shall not, after [insert the date on which Services may first be operated by the Train Operator under this contract] enter into any agreement with a third party that requires the consent of any third party in order to amend this contract. 18.7.4 Application to the Freight Customer The Freight Customer shall have the right under the Contracts (Rights of Third Parties) Act 1999 to: (a) require that the rights relating to any Freight Customer Service and/or Freight Customer Alternative Train Slot, in each case identified in a valid Drawdown Notice served on Network Rail and the Train Operator, are incorporated into this contract in accordance with Clause 5.10.1; (b) require that the rights relating to any Affected Service and the Train Operator's rights referred to in Clause 5.10.8(c) in respect of such Affected Service, are revoked in accordance with Clause 5.10.8; and (c) enforce its rights under Clause 18.4 in respect of any notice to be served on it under this contract. 18.8 [Not used] SCHEDULE 1: CONTACT PARTICULARS 1. Network Rail’s address for service of notices is: Network Rail Infrastructure Limited
(c) all or part of the goods planned to be carried by the Base Service are required to be transported by any mode other than rail, for all or any part of the journey from its Origin to its Destination; (d) at least one additional locomotive is used for the Revised Base Service over the number used for the Base Service; (e) a diesel locomotive is required to be used for the Revised Base Service in circumstances where Network Rail has agreed to provide electricity for traction purposes for the Base Service as apparent from the column headed “Timing Load” in the Rights Table annexed to Schedule 5; or (f) the parties agree that there is a requirement for a specified number of the Train Operator’s train crew to acquire knowledge of any diversionary route which may form part of the Revised Base Service and such requirement has come about as a direct result of the exceptional nature of the variation to the Base Service, provided that the relevant variation arises as a direct result of a Network Rail Early Notice Possession; “Category 3 Disruption Trigger” means where the Train Operator incurs Actual Costs as a consequence of any Category 3 Disruption arising from a single Network Rail Early Notice Possession; “Disruption Claim Notice” has the meaning specified in paragraph 3.4.2; “Disruptive Event” has the meaning ascribed to it in Part H of the Network Code; “Early Notice Possession” means any Restriction of Use of all or part of the Network notified in all material respects to a Train Operator in accordance with sections 4, 5 or 7 of the Engineering Access Statement prior to the Possession Notice Date; “Enhanced Planned Disruption Sum” means £800; “Freight Capacity Charge” has the meaning ascribed to it in Schedule 7; “Late Notice Actual Costs” means any costs, direct losses and expenses (including any loss of revenue) reasonably incurred or reasonably expected to be incurred by the Train Operator including any increase in Variable Costs but net of: (a) any benefit arising from a Relevant Cancellation or Relevant Service Variation (as the case may be) including any decrease in Variable Costs as a consequence of such Relevant Cancellation or Relevant Service Variation (as the case may be); and (b) any Late Notice Cancellation Sum or Service Variation Sum (as the case may be) due to the Train Operator in connection with the relevant
(c) Network Rail and one or more other train operators, establishing an alliance under which the parties to such legally binding agreement agree to share risk or reward or both on a REBS Route or part thereof on which the Train Operator operates Services and which is likely to have a material direct financial impact on one or more elements of Network Rail’s costs or income included within the Route Baseline; “Metered Train m” means, as the context requires, either: (a) a train of a particular type; or (b) a specific train having a train ID, in either case as specified in Appendix 3 of this Schedule 7 or Appendix 2 or Appendix 4 of the Traction Electricity Rules; “Network Rail Distribution System Loss Factor” means the relevant factor that represents the electrical losses between the On-Train Meter and Network Rail’s meter through which it purchases traction electricity for the AC System or the DC System in Geographic Area g, as set out in Appendix 3 of the Traction Electricity Rules; “New Registered Equipment” means a type of railway vehicle or vehicle commodity combination not incorporated in the section of the Track Usage Price List entitled “Freight Variable Usage Charge rates”; “On-Train Meter” and "On-Train Metering" have the meanings ascribed to them in paragraph 1.2 of the Traction Electricity Rules; “ORR’s Qualifying Modification Criteria” means the criteria issued by ORR as described in paragraph 2.9.1; “Other Train” means any Service that is not a Coal Train or an Intermodal Train; “Other Trains Baseline” has the meaning attributed to it in paragraph 2.3.6; “Outperformance Cap” means the maximum possible amount in pounds sterling that can be attributed to a REBS Outperformance as published by Network Rail in its Delivery Plan; “Outperformance Sum” means the lower of: the Outperformance Cap as indexed in accordance with paragraph 4.11; and 25% of the amount in pounds sterling which ORR, in its annual efficiency and finance assessment of Network Rail, determines in respect of the REBS Outperformance; “Phased in Charges Indexation Adjustment” has the meaning ascribed to it in paragraph 2.7.3;
where: OCIt means the indexed Outperformance Cap in respect of Relevant Year t; OCt means the Outperformance Cap in respect of Relevant Year t; UCIt means the indexed Underperformance Cap in respect of Relevant Year t; UCt means the Underperformance Cap in respect of Relevant Year t; RPIt has the meaning set out in paragraph 4.10 above; and RPI2012 has the meaning set out in paragraph 4.10 above. APPENDIX 1 – REBS ROUTES TABLE Route Route definition Anglia As defined in Network Rail’s Delivery Plan supporting information East Midlands Kent London North East London North West Scotland Sussex Wales Wessex Western