Content Headings

Key Issues

Example clauses

Notes and References

Concessionaire indemnities to the Authority

Concessionaire should manage the risks covered by the indemnity (and the fact that there is no carve out for causation) by putting appropriate insurance cover in place (which it is required by law to do), which contains satisfactory non-vitiation provisions.

Deliberate acts or omissions do not include acts or omissions which are within the contemplation of the parties or provided for in this Agreement.

The carve out from the indemnity for the Authority acts and omissions does not include physical damage caused by Concessionaire as a result of "negligent" acts or omissions of the Authority as Concessionaire should insure against that risk. The Authority should not act as insurers of last resort in those circumstances.

Alternative 1

The Concessionaire shall indemnify and keep the Authority indemnified at all times from and against all Direct Losses sustained by the Authority in consequence of:

(a)  any claim for, or in respect of, the death and/or personal injury of any employee of, or person engaged by, the Concessionaire or any [Concessionaire's Shareholder] notwithstanding any act or omission of the Authority or any [Authority Party];

(b)  any claim for, or in respect of, the death and/or personal injury of any third party (other than a person [clause reference to persons specifically indemnified by the Authority below] arising out of, or in the course of, the Project Operations, save to the extent caused (or contributed to) by any Unreasonable Act by the Authority or any [Authority Party], breach of any express provision of this Agreement by the Authority or any [Authority Party] or any deliberate act or omission of the Authority or any [Authority Party];

(c)  any physical loss or damage of to [Authority Assets] arising by reason of any act or omission of the Concessionaire or any [Concessionaire's Shareholders], save to the extent that such loss or damage arises out of the breach of any express provision of this Agreement by the Authority or any [Authority Party] or any deliberate act or omission of the Authority or any [Authority Party]; and

(d)  any loss of or damage to property or assets of any third party arising by reason of any act or omission of the Concessionaire or any [Concessionaire's Shareholders], save to the extent that such loss or damage arises out of the breach of any express provision of this Agreement by the Authority or any [Authority Party] or any deliberate act or omission of the Authority or any [Authority Party]. 

Mirrors the indemnity given by the Authority in relation to its employees.

Alternative 1 adapted from Department of Health (UK), Standard Form Project Agreement Index reference A1 Folder 1.

Alternative 2

The Concessionaire shall indemnify, defend and hold the Authority harmless against any and all proceedings, actions and third party claims arising out of a breach by Concessionaire of any of its obligations under this Agreement except to the extent that any such claim has arisen due to breach by the Authority of any of its obligations under this Agreement or a Force Majeure Event which is a Political Event. 

Without limiting the generality of this clause, the Concessionaire shall fully indemnify, save harmless and defend the Authority including its officers servants, agents and subsidiaries from and against any and all loss and damages arising out of or with respect to failure of the Concessionaire (a) to comply with Applicable Laws and Applicable Permits, (b) to make payments of Taxes relating to the Concessionaire's Contractors, suppliers and representatives income or other taxes required to be paid by the Concessionaire without reimbursement hereunder, or (c) to pay amounts due as a result of materials or services furnished to the Concessionaire or any of its Contractors which are payable by the Concessionaire or any of its Contractors.

Without limiting the generality of the provisions of this clause, the Concessionaire shall fully indemnify, save harmless and defend the Authority from and against any and all damages which the Authority may hereafter suffer, or pay by reason of any demands, claims, suits or proceedings arising out of claims of infringement of any domestic or foreign patent rights, copyrights or other intellectual property, proprietary or confidentiality rights with respect to any materials, information, design or process used by the Concessionaire or by the Concessionaire's Contractors in performing the Concessionaire's obligations or in any way incorporated in or related to the Project. If in any such suit, claim or proceedings, a temporary restraint order or preliminary injunction is granted, the Concessionaire shall make every reasonable effort, by giving a satisfactory bond or otherwise, to secure the suspension of the injunction or restraint order. If, in any such suit claim or proceedings, the Project, or any part thereof or comprised therein is held to constitute an infringement and its use is permanently injuncted, the Concessionaire shall promptly make every reasonable effort to secure for the Authority a license, at no cost to the Authority , authorising continued use of the infringing work. If the Concessionaire is unable to secure such license within a reasonable time, the Concessionaire shall, at its own expense and without impairing the specifications and standards, either replace the affected work, or part, or process thereof with non-infringing work or parts or process, or modify the same so that it becomes non-infringing.

Alternative 2 adapted from Concession Agreement for Colombo Kathunayake Expressway Project (note confidential), index reference A2, folder 1.