SCHEDULE 9Protective provisions

PART 13For the protection of Air Products (BR) Limited

Indemnity

193.—(1) The undertaker must indemnify and keep Air Products indemnified against all expenses, loss, demands, proceedings, damages, claims, penalty and reasonably foreseeable indirect or consequential loss (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) and costs incurred by or recovered from Air Products—

(a)by reason of the construction, operation, maintenance, repair and decommissioning of any relevant work or the failure of it; or

(b)by reason of any act or omission of the undertaker or of any person in its employ or of its contractors or others whilst engaged upon the construction, operation, maintenance, repair and decommissioning of any relevant work.

(2) The fact that any act or thing may have been done by Air Products on behalf of the undertaker or in accordance with a plan approved by Air Products or in accordance with any requirement of Air Products or under its supervision will not (unless sub-paragraph ‎(3) applies), excuse the undertaker from liability under the provisions of sub-paragraph ‎(1) unless Air Products fails to carry out and execute the works properly with due care and attention and in a skilful and workman like manner or in a manner that does not accord with the approved plan.

(3) Nothing in sub-paragraph ‎(1) shall impose any liability on the undertaker in respect of—

(a)any damage or interruption to the extent that it is attributable to the neglect or default of Air Products, its officers, servants, contractors or agents; and/or

(b)any indirect or consequential loss of Air Products or any third party (including but not limited to loss of use, revenue, profit, contract, production, increased cost of working or business interruption) arising from any such damage or interruption which is not reasonably foreseeable.

(4) Air Products must give the undertaker reasonable notice of any claim or demand under sub-paragraph ‎(1) and no settlement or compromise of such a claim or demand is to be made without first consulting the undertaker and considering their representations.

(5) Air Products must, in respect of any matter covered by the indemnity given by the undertaker in this paragraph, use reasonable endeavours to mitigate its loss.

(6) Air Products must use its reasonable endeavours to mitigate any costs, expenses, loss, demands, and penalties to which the indemnity under this paragraph applies where it is within Air Products’ reasonable ability and control to do so and which expressly excludes any obligation to mitigate liability arising from third parties which is outside of Air Products’ control.