61.3  Contractor Not Responsible

The Contractor shall not be responsible or be obliged to indemnify the Authority for:

61.3.1  any of the matters referred to in Clauses 61.1.1 to 61.1.3 (inclusive) that arises as a direct result of the Contractor acting on the instruction of the Authority;

61.3.2  any injury, loss, damage, cost and expense caused by the negligence or wilful misconduct of the Authority or any Authority Related Party or by the breach of the Authority of its obligations under this Contract;

61.3.3  WCA claims for mileage payments in relation to which the Contractor's liability is provided for in paragraph [Mileage Deductions] of Schedule 4 (Payment Mechanism); or

61.3.4  any claim made pursuant to Clause 61.2 (Breach of statutory duty) to the extent that, when taken together with any other claims made under that Clause for the [  ] previous years, the amount of the Contractor's Uninsured Losses exceeds [amount in words (£amount in figures) (Indexed)135].136

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135  A cap on liability for breach of statutory duty should only be agreed with a Bidder if there are clear value for money benefits and this is demonstrated by the Bidder.  A cap should not be offered as a matter of course.

136  A general cap on indemnities should only be included if it represents good value for money.  If Bidders require a cap they will be required to demonstrate the cost savings to the Authority if it accepts a cap.  Note that where Landfill arrangements are not included in the Contract, this indemnity should not cover the Authority's costs of Landfill unless arising from the Contractor's default or negligence - specific wording may be appropriate.  Other considerations for the Authority include whether (in circumstances where a cap is agreed) it is appropriate for that cap to apply to all liabilities, for example, there may be circumstances in which it is acceptable to treat environmental liabilities separately.