10 LIMITATION OF LIABILITY

10.1 With the exception of liability for death, personal injury and/or any other liability that cannot lawfully be excluded or limited, the Independent Tester's maximum [aggregate] liability to all parties, under or in connection with this Agreement, whether in contract or in delict, or for breach of statutory duty is limited to £[•] million.16

10.2 [Notwithstanding anything to the contrary stated elsewhere in this Agreement, the parties hereby expressly agree that the Independent Tester shall have no liability to any party under or in connection with this Agreement for any claim or claims related to terrorism, asbestos or toxic mould.]17

10.3 No action or proceedings under or in connection with this Agreement shall be commenced against the Independent Tester after the expiry of twelve years from the earlier of: (a) the completion of the Services; and (b) the termination of this Agreement.

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16 It is suggested that an appropriate cap may depend on the capital value of the scheme, such as:

Up to £10M capital value - £1M cap

Greater than £10M and up to £25M capital value - £2M cap

Greater than £25M and up to £50M capital value - £3M cap

Greater than £50M and up to £100M capital value - £5M cap

Greater than £100M capital value - £10M cap

However, Authorities to consider what is an appropriate cap on liability depending on the project-specific circumstances and should ensure that this is specified prior to calling for final tenders to ensure such tenders are based on the required cap.

17 This may be appropriate where the IT's insurance cover excludes liability for these occurrences. Authorities to check.