24.7.1 The Contractor should typically agree that termination compensation payments are its sole remedy, subject to certain exceptions. The Authority's agreement to a similar provision in this regard should depend on the issues set out in Section 14.6 (Damages Claims).
24.7.2 Required drafting which deals with the Contractor's position is as follows:
Any payment of compensation shall be in full satisfaction of any claim which can be made against the Authority by the Contractor in relation to termination of this Contract or any Project Document. The compensation payable under Clauses 23.1.3 (Compensation on Authority Default), 23.3.2 (Compensation on Termination for Force Majeure), 23.4.3 (Compensation for Termination for Corrupt Gifts and Fraud), 23.5.2 (Compensation for Voluntary Termination by the Authority) 23.5.4 (Compensation on Termination on an Authority Break Point Date) and 23.6 (Termination for Breach of Refinancing provisions) shall be the sole remedy of the Contractor against the Authority in respect of termination of the Contract.
Specific exclusions will exist in most transactions and these should be on a project specific basis, based on the principle that any compensation payment does not reflect other claims. Examples would include claims under Clause 31 (Transparency and Information), certain types of claims for infringement of intellectual property rights and other claims not reflected, such as claims by third parties against the Authority or claims arising from damage to other property of the Authority. The following required drafting deals with such continuing obligations.
24.7.3 Continuing Obligations
Save as otherwise expressly provided in this Contract or as already taken into account in the calculation of any Termination Sum or other payment of compensation on termination pursuant to this Contract:
(a) termination of the Service Period shall be without prejudice to any accrued rights and obligations under this Contract as at the Termination Date; and
(b) termination of the Service Period shall not affect the continuing rights of the Authority and the Contractor under Clauses [ ]16 or under any other provision of this Contract which is expressed to survive termination or which is required to give effect to such termination or the consequences of such termination.
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16 The parties will need to specify those Contract provisions intended to survive termination or expiry of the Contract. Usually, these will include the provisions relating to restrictions on Authority Assignment (Clause 32.3), Transparency and Information (Clause 31), Dispute Resolution (Clause 34), Indemnities, Guarantees and Contractual Claims (Clause 14), Personal Data (Clause 31.3), Public Relations and Publicity (Clause 31.4) and Contractor's records (Clause 31.2) and Intellectual Property Rights (Clause 33.5).