2.1 Project Co and the Authority jointly appoint the Independent Tester to perform the obligations and tasks which are ascribed to the Independent Tester under the Design Build Finance and Maintain Agreement and which are set out in Appendix 1 upon the terms and conditions set out below. The Contractor [and the Equipment Services Provider] is a party [are parties] to this Agreement solely to make the commitments on its part [their respective parts] as expressly made in this Agreement and, for the avoidance of doubt, the Independent Tester shall have no liability to the Contractor [and the Equipment Services Provider]11 .
2.2 The Independent Tester shall provide the services under Clause 2.1 above (the "Services") independently, fairly and impartially to and as between Project Co and the Authority in relation to the Design Build Finance and Maintain Agreement at such times and at such locations as the parties shall agree from time to time. In performing the Services, the Independent Tester shall have regard to the interest of the Funders. Whilst the Independent Tester shall take account of any representations made by Project Co and the Authority and the Contractor (as appropriate) [and the Funder's Technical Adviser] the Independent Tester shall not be bound to comply with any representations made by any of them in connection with any matter on which the Independent Tester is required to exercise his professional judgement.
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11 It has been suggested on some projects that the Contractor should receive the benefit of a duty of care from the Independent Tester (whether under this agreement or through a collateral warranty). Authorities should consider the implications fully and seek advice from their legal advisers on this point. Authorities' interests are likely to be prejudiced as a result. Issues that need to be considered include: whether this would increase the fee; whether the financial liability of the IT would be diluted (e.g. consider any cap on liability); whether the IT's liability to the Authority may be prejudiced as a result of a claim made by the Contractor; whether there could be any adverse impact on the resources of the IT; whether the Contractor's remedy should lie against Project Co in the event of any claim; and other project-specific considerations.