Article 50 General principles of risk allocation and responsibility

Passing of responsibility for the Works

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

50.2 If Taking-Over occurs for any Section of the Works, responsibility for the care of the Section shall then pass to the Employer.

Article 51 Liabilities of the Parties and their reciprocal limitations and exclusions

Exclusions from liability

51.1 Notwithstanding any law or practice to the contrary, in no circumstances shall either Party be responsible to the other for treble, exemplary, moral or punitive damages, or any type of noncompensatory damages no matter how they are described.

51.2 Except as provided in Article 35 (Variations), Article 37 (Delay Damages), Article 42.7 (Failure to approve), Article 44.1 (Delayed Payment) or Articles 46.10 through 46.13 (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 damages or losses 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.

Overall limitation of liability

51.3 Except as provided in Article 35 (Variations), Article 37 (Delay Damages), Article 42.7 (Failure to approve), Article 44.1 (Delayed Payment) or Articles 46.10 through 46.13 (Performance-related liquidated damages) and notwithstanding any other provision of this Contract, neither Party can claim that the other Party must pay it, by way of damages or any other form of compensation for Breach of Contract, under or in connection with the Contract (including obligations to indemnify and/or hold harmless), in tort, or for negligence (or any or all of them) sums that when aggregated with other sums paid under the Contract for damages or compensation for Breach of Contract or otherwise, amount to more than the percentage as indicated in the Special Conditions (excluding interest) of the Contract Price as varied in accordance with the Contract.

Indemnities

51.4 Contractor shall hold harmless and indemnify Employer’s Group against all liabilities, claims, judgments, demands, damages, losses, costs and expenses arising directly or indirectly out of:

  1. Injury to (including sickness) and death of Contractor’s Group comprising its employees, agents, representatives, including the employees, agents, representatives of its suppliers, contractors, consultants, Subcontractors, co-owners and Affiliate Companies;
  2. Loss of or damage to Contractor’s Group own property and to the property of its own employees, agents, or representatives, including loss or damage to the property of its suppliers, contractors, consultants, Subcontractors, co-owners and Affiliate Companies; or
  3. Pollution by Contractor’s Group originating and/or emanating from its property, equipment and spread;

whether or not caused or contributed to by the negligence or other breach of duty of any of the Employer’s Group. Contractor consequently waives, and shall cause their insurers to waive, all right of recourse against Employer’s Group in respect thereof and shall save and hold Employer’s Group harmless from and against any such liabilities, claims, judgements, demands, damages, losses, costs and expenses in connection therewith, arising thereof and/or relating thereto.

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51.5 Employer shall hold harmless and indemnify Contractor’s Group against all liabilities, claims, judgments, demands, damages, losses, costs and expenses arising directly or indirectly out of:

  1. Injury to (including sickness) and death of Employer’s Group own employees, agents, representatives, including injury to (including sickness) and death of the employees, agents, representatives of its suppliers, contractors, consultants, Subcontractors, co-owners and Affiliate Companies;
  2. Loss or damage to Employer’s Group property and to the property of its own employees, agents, or representatives, including loss or damage to the property of its suppliers, contractors, consultants, Subcontractors, co-owners and Affiliate Companies;
  3. Pollution by Employer’s Group originating and/or emanating from its property, equipment and spread,

whether or not caused or contributed to by the negligence or other breach of duty of any of Contractor’s Group. Employer consequently waives, and shall cause their insurers to waive, all right of recourse against Contractor’s Group in respect thereof and shall save and hold Contractor’s Group harmless from and against any such liabilities, claims, judgements, demands, damages, losses, costs and expenses in connection therewith, arising thereof and/or relating thereto.

51.6 Third party indemnification

51.6.1 Contractor shall hold harmless and indemnify Employer’s Group against any claim, loss or liability for injury and/or death of persons or damage and/or loss of property of third parties to the extent incurred by reason of any Negligence by Contractor, under the Contract.

51.6.2 Employer shall hold harmless and indemnify Contractor’s Group against any claim, loss or liability for injury and/or death of persons or damage and/or loss of property of third parties to the extent incurred by reason of any Negligence by Employer, under the Contract.

Article 52 Fraud, wilful misconduct or Gross Negligence

52.1 Nothing in this Contract excludes or limits liability for either Party’s fraud, wilful misconduct and/or Gross Negligence.

Article 53 Warranty for future purchasers or operators

53.1 The Employer warrants that any future purchasers or operators of the Plant or Works shall be bound by the exclusions and limitations of liability in this Contract, and shall, if necessary to maintain this warranty, assign or novate this Contract to any such future purchasers or operators, or otherwise obtain their agreement to its terms and conditions.

The Employer shall indemnify and hold harmless the Contractor against any claims of future purchasers or operators asserted against Contractor conflicting with said exclusions and limitations.