11.—(1) The undertaker is responsible for and shall indemnify the Agency against all costs and losses not otherwise provided for in this Schedule which may be incurred or suffered by the Agency by reason of—E+W+S
(a)the construction, operation or maintenance of any specified works comprised within the authorised works or the failure of any such works comprised within them; or
(b)any act or omission of the undertaker, its employees, contractors or agents or others whilst engaged upon the construction, operation or maintenance of the authorised works or dealing with any failure of the authorised works.
(2) For the avoidance of doubt, in sub-paragraph (1)—
“costs” includes—expenses and charges; staff costs and overheads; and legal costs; and
“losses” includes physical damage.
(3) The undertaker shall indemnify the Agency against all liabilities, claims and demands arising out of or in connection with the authorised works or otherwise out of the matters referred to in sub-paragraph (1)(a) and (b).
(4) For the avoidance of doubt, in sub-paragraph (3)—
“claims” and “demands” include as applicable—
costs (within the meaning of sub-paragraph (2)) incurred in connection with any claim or demand;
any interest element of sums claimed or demanded;
“liabilities” includes—
contractual liabilities;
tortious liabilities (including liabilities for negligence or nuisance);
liabilities to pay statutory compensation or for breach of statutory duty; and
liabilities to pay statutory penalties imposed on the basis of strict liability (but does not include liabilities to pay other statutory penalties).
(5) The Agency must give to the undertaker reasonable written notice of any such claim or demand as is referred to in sub-paragraph (3) as soon as reasonably practicable after it becomes aware of such claim or demand, and no settlement or compromise of any such claim or demand is to be made without the prior agreement of the Undertaker which agreement may not be unreasonably withheld or delayed.
(6) The fact that any work or thing has been executed or done by the Undertaker in accordance with a plan approved by the Agency, or to its satisfaction, or in accordance with any directions or award of an arbitrator, does not relieve the Undertaker from any liability under the provisions of this Part of this Schedule.
(7) Nothing in this paragraph imposes any liability on the undertaker with respect to any costs, charges, expenses, damages, claims, demands or losses to the extent that they are attributable to the neglect or default of the Agency, its officers, servants, contractors or agents.
Commencement Information
I1Sch. 8 Pt. 4 para. 11 in force at 10.3.2022, see art. 1