Provision Language
SCHEDULE 2: GENERAL TERMS AND CONDITIONS
4. Inspection, rejection, return and recall
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4.9 Where the Supplier is required by Law, Guidance, and/or Good Industry Practice to order a product recall (“Requirement to Recall”) in respect of the Goods, the Supplier shall: […]
4.9.4 indemnify and keep the Authority indemnified against, any loss, damages, costs, expenses (including without limitation legal costs and expenses), claims or proceedings suffered or incurred by the Authority as a result of such Requirement to Recall.
10. Warranties
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10.3 If the Supplier is in breach of Clause 10.2 of this Schedule 2, then, without prejudice to any other right or remedy of the Authority, the Authority shall be entitled to reject and/or return the Goods and the Supplier shall, subject to Clause 13.2 of this Schedule 2, indemnify and keep the Authority indemnified against, any loss, damages, costs, expenses (including without limitation legal costs and expenses), claims or proceedings suffered or incurred by the Authority as a result of such breach.
12. Indemnity
12.1 The Supplier shall be liable to the Authority for, and shall indemnify and keep the Authority indemnified against, any loss, damages, costs, expenses (including without limitation legal costs and expenses), claims or proceedings in respect of:
12.1.1 any injury or allegation of injury to any person, including injury resulting in death;
12.1.2 any loss of or damage to property (whether real or personal); and/or
12.1.3 any breach of Clause 10.1.18 and/or Clause 11 of this Schedule 2; that arise or result from the Supplier’s negligent acts or omissions or breach of contract in connection with the performance of this Contract including the supply of the Goods, except to the extent that such loss, damages, costs, expenses (including without limitation legal costs and expenses), claims or proceedings have been caused by any act or omission by, or on behalf of, or in accordance with the instructions of, the Authority.
12.2 Liability under Clauses 12.1.1 and 12.1.3 of this Schedule 2 and Clause 2.5 of Schedule 3 shall be unlimited. Liability under Clauses 4.9.4, 10.3, and 12.1.2 of this Schedule 2 shall be subject to the limitation of liability set out in Clause 13 of this Schedule 2.
12.3 In relation to all third party claims against the Authority, which are the subject of any indemnity given by the Supplier under this Contract, the Authority shall use its reasonable endeavours, upon a written request from the Supplier, to transfer the conduct of such claims to the Supplier unless restricted from doing so. Such restrictions may include, without limitation, any restrictions:
12.3.1 relating to any legal, regulatory, governance, information governance, or confidentiality obligations on the Authority; and/or
12.3.2 relating to the Authority’s membership of any indemnity and/or risk pooling arrangements.
Such transfer shall be subject to the Parties agreeing appropriate terms for such conduct of the third party claim by the Supplier (to include, without limitation, the right of the Authority to be informed and consulted on the ongoing conduct of the claim following such transfer and any reasonable cooperation required by the Supplier from the Authority).
13. Limitation of liability
13.1 Nothing in this Contract shall exclude or restrict the liability of either Party:
13.1.1 for death or personal injury resulting from its negligence;
13.1.2 for fraud or fraudulent misrepresentation; or 13.1.3 in any other circumstances where liability may not be limited or excluded under any applicable law.
13.2 Subject to Clauses 12.2, 13.1, 13.3 and 13.5 of this Schedule 2, the total liability of each Party to the other under or in connection with this Contract whether arising in contract, tort, negligence, breach of statutory duty or otherwise shall be limited in aggregate to the greater of:
(a) five million GBP (£5,000,000); or
(b) one hundred and twenty five percent (125%) of the total Contract Price paid or payable by the Authority to the Supplier for the Goods.
13.3 There shall be no right to claim losses, damages and/or other costs and expenses under or in connection with this Contract whether arising in contract (to include, without limitation, under any relevant indemnity), tort, negligence, breach of statutory duty or otherwise to the extent that any losses, damages and/or other costs and expenses claimed are in respect of loss of production, loss of business opportunity or are in respect of indirect loss of any nature suffered or alleged. For the avoidance of doubt, without limitation, the Parties agree that for the purposes of this Contract the following costs, expenses and/or loss of income shall be direct recoverable losses (to include under any relevant indemnity) provided such costs, expenses and/or loss of income are properly evidenced by the claiming Party:
13.3.1 extra costs incurred purchasing replacement or alternative goods;
13.3.2 costs incurred in relation to any product recall;
13.3.3 costs associated with advising, screening, testing, treating, retreating or otherwise providing healthcare to patients;
13.3.4 the costs of extra management time; and/or 13.3.5 loss of income due to an inability to provide health care services, in each case to the extent to which such costs, expenses and/or loss of income arise or result from the other Party’s breach of contract, negligent act or omission, breach of statutory duty, and/or other liability under or in connection with this Contract.
13.4 Each Party shall at all times take all reasonable steps to minimise and mitigate any loss for which that Party is entitled to bring a claim against the other pursuant to this Contract.
13.5 If the total Contract Price paid or payable by the Authority to the Supplier over the Term:
13.5.1 is less than or equal to one million pounds (£1,000,000), then the figure of five million pounds (£5,000,000) at Clause 13.2 of this Schedule 2 shall be replaced with one million pounds (£1,000,000);
13.5.2 is less than or equal to three million pounds (£3,000,000) but greater than one million pounds (£1,000,000), then the figure of five million pounds (£5,000,000) at Clause 13.2 of this Schedule 2 shall be replaced with three million pounds (£3,000,000);
13.5.3 is equal to, exceeds or will exceed ten million pounds (£10,000,000), but is less than fifty million pounds (£50,000,000), then the figure of five million pounds (£5,000,000) at Clause 13.2 of this Schedule 2 shall be replaced with ten million pounds (£10,000,000) and the figure of one hundred and twenty five percent (125%) at Clause 13.2 of this Schedule 2 shall be deemed to have been deleted and replaced with one hundred and fifteen percent (115%); and
13.5.4 is equal to, exceeds or will exceed fifty million pounds (£50,000,000), then the figure of five million pounds (£5,000,000) at Clause 13.2 of this Schedule 2 shall be replaced with fifty million pounds (£50,000,000) and the figure of one hundred and twenty five percent (125%) at Clause 13.2 of this Schedule 2 shall be deemed to have been deleted and replaced with one hundred and five percent (105%).
13.6 Clause 13 of this Schedule 2 shall survive the expiry of or earlier termination of this Contract for any reason.
SCHEDULE 3: INFORMATION AND DATA PROVISIONS
2. Data protection
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2.5 The Supplier shall indemnify and keep the Authority indemnified against, any loss, damages, costs, expenses (including without limitation legal costs and expenses), claims or proceedings whatsoever or howsoever arising from the Supplier’s unlawful or unauthorised Processing, destruction and/or damage to Personal Data in connection with this Contract.