12.8  Abatement as sole remedy

(a)  In some jurisdictions, in addition to government's abatement rights, the private party will indemnify government for government's claims and losses as a result of a breach by the private party of its obligations under section 12.1.2 to the extent that the amount of the loss exceeds the amount of the abatement. Accordingly, in these jurisdictions, a reduction in, or abatement of, the service fee is not an exclusive remedy for a breach.

(b)  In other jurisdictions, government limits its ability to make a damages claim against, or seek indemnity from, the private party for breach and relies on the abatement regime as its exclusive remedy for which the private party is liable in respect of Service Failures, except those which give rise to a claim or liability for:

(i)  third party injury (including death) or property damage;

(ii)  loss or damage to, or destruction of, the facility or the site;

(iii)  costs incurred by government in remedying the breach or default or exercising Step-in Rights; or

(iv)  reasonably foreseeable economic loss suffered by government or government-related parties (including the facility operator) which is caused by the unlawful or negligent act or omission of the private party,40

In each case to the extent that the amount of the loss exceeds the amount of the abatement resulting from such act or omission.

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40  Depending on the nature of the project and any direct relationships which government has with third parties in relation to the facility, government may carve out all reasonably foreseeable economic loss and not only that which is "caused by the unlawful or negligent act or omission of the private party".