(a) Subject to section 33.1.2, the private party will release and indemnify145 government and its associates in respect of any action, claim, demand, cost, charge, liability, loss, damage and expense (including legal expenses) ("Loss") incurred by government (including any third party claims or liabilities) which may arise out of (or as a consequence) of:
(i) the design, construction, operation or maintenance of the facility;
(ii) the provision or use of, or purported reliance on, information documents (including any site assessment report prepared by government-appointed independent consultants);146
(iii) any acts or omissions of the private party, the sub-contractors and their associates in relation to, or in consequence of, the project (including the performance or non-performance by the private party of its obligations under the project agreement and their presence on, or access to, the facility and the site);
(iv) any contamination or pollution occurring on or from the site other than that created by a government core service at the site and for which the private party does not have management responsibility;147
(v) breach or failure to comply with the terms of any Project Contract by the private party or any of its associates; and
(vi) negligence or unlawful acts or omissions, or wilful misconduct, by the private party and its associates.
(b) Generally government will not cap the private party's liability under the indemnity. However, in some cases, and where it represents value for money, government may cap or otherwise limit the private party's liability under the indemnity in respect of:
(i) third party claims (other than death and personal injury claims);
(ii) damage to government property; and
(iii) government economic losses,
subject to paragraph (c).
(c) If it is agreed that government will cap the private party's liability, this cap will not extend to any actions, claims or liabilities arising or brought against the private party by a third party.
(d) While there may be a nexus between such caps and the level of required insurances, these should not be expressly or directly linked.
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145 The project agreement will normally provide for appropriate procedures for dealing with claims.
146 See section 4.4.3 of Chapter 4 (Environmental issues and Site Conditions).
147 See section 4.4.8 of Chapter 4 (Environmental issues and Site Conditions) in respect of the private party's liability for third party claims and liability arising from contamination or pollution occurring on or emanating from the site.