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Article 50 general principles of risk allocation and responsibility

Passing of responsibility for the Subcontract Works

50.1 The Subcontractor shall take full responsibility for the care of the Subcontract Works or any Section of them from the Start Date until the Date of Taking- Over, at which time responsibility for the care of the Subcontract Works and the risk for loss or damage to the Subcontract Works shall pass to the Main Contractor, unless otherwise agreed between the Subcontractor and the Main Contractor.

50.2 If Taking-Over occurs for any Section of the Subcontract Works, responsibility for the care of the Section shall then pass to the Main Contractor, unless otherwise agreed between the Subcontractor and the Main Contractor.

Article 51 purpose of the limitation and exclusion articles

51.1 The purpose of these limitations-of-liability provisions is primarily to ensure that neither Party is liable for losses that are difficult to estimate or provide for or are out of proportion with respect to the value of the Subcontract obligations, arising from breach of contract or other liability. This approach should ensure that the Parties can agree on the most reasonable Subcontract Price for the Subcontract Works.

Article 52 liabilities of the parties and their reciprocal limitations and exclusions

Damage to property other than the Subcontract Works

52.1 A Party shall be liable to the other Party for damage to or loss of any property other than the Subcontract Works, only to the extent that such damage or loss arises out of the negligence or intentional misconduct of the Party said to be liable.

Exclusions from liability

52.2 Notwithstanding any law or practice to the contrary, in no circumstances will either Party be responsible to the other for treble, exemplary, moral or punitive damages, or any type of non-compensatory damages no matter how they are described.

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52.3 Except as provided in Article 35 (Variations), Article 37 (Delay Damages), Article 42.6 (Failure to certify), Article 44.1 (Delayed Payment) or Article 46.6 (Performance-related liquidated damages), neither Party shall be liable to the other Party for loss of profit, loss of income, loss of production or wasted expenditure, or for indirect or consequential damage however described, including (without limiting the generality of the foregoing) loss of use, loss of revenue, loss of interest, loss of data or information or similar losses.

Limitation of liability for individual claims

52.4 In all cases (including obligations to indemnify and/or hold harmless the other Party, if any) a Party’s liability per event giving rise to a claim shall be limited to an amount of 7.5% of the initial Subcontract Price with the exception of liability under Article 34 (Intellectual Property Rights) or under Article 49 (Defect Correction Period), including, without limitation, expenditure for the performance of the Subcontractor’s obligations by a third party pursuant to Article 49.11 (Failure to remedy Defects), Article 57 (Suspension and/or termination of the Subcontract) and Article 58.8 (Failure to take out or maintain insurance) all of which shall be subject only to the limitation of liability mentioned in Article 52.5.

Overall limitation of liability

52.5 Notwithstanding any other provision of this Subcontract, neither Party can claim that the other Party must pay it, by way of damages or any other form of compensation for breach of its duties, under or in connection with the Subcontract (including obligations to indemnify and/or hold harmless), in tort, or for negligence or gross negligence (or any or all of them) sums that when aggregated with other sums paid under the Subcontract for damages or compensation for breach of contract or otherwise, amount to more than 30% (excluding interest) of the initial Subcontract Price.¹⁶

52.6 Nothing in this Subcontract excludes or limits liability for fraud.

Article 53 Time limit for liability

53.1 Except in the event of fraud; neither Party shall be entitled to claim from the other Party for any loss or damage howsoever caused more than ten years after Taking-Over.

Article 54 extensions of limitations to and exclusions from liability to certain third parties

54.1 The foregoing limitations and exclusions of liability are also for the benefit of and apply to each Party’s personnel, agents, subcontractors, suppliers and their respective personnel.

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Article 55 additional warranties

55.1 In the event of the Main Contractor being requested to give specific additional warranties to the Employer, and such request concerns the Subcontract Works in any respect, and the Main Contractor gives Notice of such request to the Subcontractor, the latter shall in good faith examine whether or not to provide such additional warranties and, if it decides to so provide, shall also endeavour to obtain extensions of such warranties from its own subcontractors and/or suppliers and pass through such additional warranties to the Main Contractor to the extent obtained from its suppliers.

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