8.2 The Board shall indemnify and keep Project Co indemnified at all times from and against all Direct Losses sustained by Project Co 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 Board or any Board Party notwithstanding any act or omission of Project Co or any Project Co Party;19
(b) any claim for, or in respect of, the death and/or personal injury of any third party (other than a person referred to in Clause 8.1(a) (Project Co and Project Co Party employees)) arising by reason of any act or omission of the Board or any Board Party in the course of the provision of the Clinical Services, any Unreasonable Act by the Board or any Board Party, breach of any express provision of this Agreement by the Board or any Board Party or any deliberate act or omission of the Board or any Board Party, save to the extent caused (or contributed to) by any act or omission of Project Co or any Project Co Party;
(c) any physical damage to any part of the Facilities or any assets or other property of Project Co or any Project Co Party arising by reason of any breach of any express provision of this Agreement by the Board or any Board Party or any deliberate act or omission of the Board or any Board Party, save to the extent caused (or contributed to) by any act or omission of Project Co or any Project Co Party20; and
(d) any loss of or damage to property or assets of any third party arising by reason of any breach of any express provision of this Agreement by the Board or any Board Party or any deliberate act or omission of the Board or any Board Party, save to the extent caused (or contributed to) by any act or omission of Project Co or any Project Co Party.
Provided that in the case of Clauses 8.2(c) and (d) there shall be excluded from the indemnity given by the Board any liability for the occurrence of risks against which and to the extent to which Project Co is bound to insure under this Agreement.21
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18 Board liability for Board or Board Party acts or omissions (or limits on Project Co liability to the extent that the relevant category of acts or omissions were caused by the Board or a Board Party) does not extend to acts and omissions of patients and visitors. Project Co should price, and run its business, on the basis that patients and visitors will use the Facilities. These provisions should be reviewed on a project specific basis. It has often been suggested that mental health facilities are more risky in this regard, but that is not necessarily the case. The majority of mental health schemes do not have a high forensic content and particularly in the case of facilities for the elderly mentally ill patient group, the risk profile is much lower than in many types of other in-patient and day care facility in the health or other markets. Boards should inform bidders of the patient mix and bidders should produce designs which take this information into account although this should not be used as a reason to reduce the level of risk transfer in the design of the facilities. Project Co's design and choice of materials, etc. should reflect the intended use and occupation of the building.
19 See footnote to Clause 8.1(a).
20 The Board indemnities relating to physical damage in paragraphs (c) and (d) do not cover physical damage caused by negligent acts or omissions. Project Co should insure against that risk. Boards should not act as insurers of last resort in those circumstances.
21 An indemnity has not been included in relation to Board breach. Project Co has its express rights under the agreement (for example, Delay Event and Excusing Causes) and its rights to sue for breach of contract in order to recover any additional loss.