The CloudStore for UK government launched in beta in February 2012, following the UK G-Cloud programme's October 2011 invitation to tender for the government's 2011-2012 pilot cloud computing framework, UK G-Cloud v1.
The October 2011 draft framework agreement, included in the invitation to tender, did not contain the following liability provisions. They were added in the December 2011 draft of the framework agreement, then expanded in the final form. The strike through text was deleted between April 2012 and is not in the final signed form.
For a description and assessment of UK G-Cloud v1, including lessons learned, particularly contractual and other legal issues, see our paper UK G-Cloud v1 and the Impact on Cloud Contracts.
1. Framework agreement at December 2011
24.1 The maximum liability of the Supplier to the Authority for all breaches of contract hereunder shall be 125% of the Management Charge payable over the lifetime of this Framework Agreement.
2. Framework agreement - final form (source: Cabinet Office/G-Cloud Programme)
24.1 Neither Party excludes or limits its liability for:
24.1.1 death or personal injury caused by its negligence, or that of its employees, agents or sub-contractors;
24.1.2 fraud or fraudulent misrepresentation by it or its employees; or
24.1.3 breach of any obligations as to title implied by section 2 of the Supply of Goods & Services Act 1982.
24.2 Subject to Clause 24.1 and Clause 24.4, each Party's total aggregate liability in connection with this Framework Agreement in each twelve (12) Month period during the Term (whether in contract, tort (including negligence), breach of statutory duty or howsoever arising) shall be limited to a sum equivalent to one hundred and twenty five percent (125%) of the Management Charge paid and payable in the year of this Framework Agreement during which the Default occurred, whichever is the greater. For the avoidance of doubt, the Parties acknowledge and agree that this Clause 24 shall not limit either Party's liability under any Call-Off Agreement and that each Party's liability in relation to a Call-Off Agreement shall be as set out in the Call-Off Agreement.
24.3 Subject to Clauses 24.1 and 24.2, the Supplier shall indemnify and keep indemnified the Authority on demand in full from and against all claims, proceedings, actions, damages, legal costs, expenses and any other liabilities whatsoever arising out of, in respect of or in connection with any death or personal injury or loss of or damage to property, which is caused by any act or omission of the Supplier. This Clause 24.3 shall not apply to the extent that the Supplier is able to demonstrate that such death or personal injury, or loss of or damage to property was not caused or contributed to by its negligence or default, or the negligence or default of the Supplier Staff or Sub-Contractors.
24.4 Subject to Clause 24.1, the Supplier's liability in relation to the obligation to pay any Management Charges which are properly due and payable to the Authority shall not be limited.
24.5 Subject to Clauses 24.1 and 24.6, in no event shall either Party be liable to the other for any:
24.5.1 loss of profits;
24.5.2 loss of business;
24.5.3 loss of revenue;
24.5.4 loss of or damage to goodwill;
24.5.5 loss of savings (whether anticipated or otherwise); and/or
24.5.6 any indirect, special or consequential loss or damage.
24.6 Subject to Clause 24.2 the Supplier shall be liable for the following types of loss, damage, cost or expense which shall be regarded as direct and shall (without in any way, limiting other categories of loss, damage, cost or expense which may be recoverable by the Authority) be recoverable by the Authority:
24.6.1 additional operational and/or administrative costs and expenses arising from any Material Default; and
24.6.2 cost of procuring, implementing and operating any alternative or replacement services to the G-Cloud Services; and
24.6.3 any regulatory losses, fines, expenses or other losses arising from a breach by the Supplier of any Laws.
3. Call-off terms (in framework agreement schedule 2) at December 2011
9.1 The maximum liability of the Supplier to the Customer for all breaches of this Call-Off Agreement is 125% of the total price payable under the Call-Off Agreement.
4. Call-off terms in framework agreement - final form (source: Cabinet Office/G-Cloud Programme)
Nothing in the Contract shall be construed to limit or exclude either Party's liability for:
9.1.1 death or personal injury caused by its negligence or that of its Staff;
9.1.2 fraud or fraudulent misrepresentation by it or that of its Staff;
9.1.3 any breach of any obligations implied by Section 2 of the Supply of Goods and Services Act 1982; or
9.1.4 any other matter which, by Law, may not be excluded or limited.
9.2 The Supplier shall not be responsible for any injury, loss, damage, cost or expense if and to the extent that it is caused by the negligence or wilful misconduct of the Customer or by breach by the Customer of its obligations under the Contract.
9.3 Subject always to Clause 9.1 and Clause 9.2, the aggregate liability of either Party for each Year of this Contract under or in relation to this Contract:
9.3.1 for all defaults resulting in direct loss to the property of the other Party, shall be subject to the financial limits (if any) set out in the Supplier’s terms and conditions or as may otherwise be agreed between the Parties and set out in the Order Form; and
9.3.2 in respect of all other Defaults, claims, losses or damages, whether arising from breach of contract, misrepresentation (whether tortuous or statutory), tort (including negligence), breach of statutory duty or otherwise shall in no event exceed a sum equivalent to one hundred and twenty five percent (125%) of the Charges paid or payable to the Supplier in the year of this Contract, as calculated as at the date of the event giving rise to the claim under consideration (or if such event occurs in the first twelve (12) Months of the Term, the amount estimated to be paid in the first twelve (12) Months of the Term) and subject in any event to the financial limits referred to in Clause 9.3.1.
9.4 Subject to Clauses 9.1, 9.2 and 9.3, in no event shall either Party be liable to the other for any:
9.4.1 loss of profits;
9.4.2 loss of business;
9.4.3 loss of revenue;
9.4.4 loss of or damage to goodwill;
9.4.5 loss of savings (whether anticipated or otherwise); and/or
9.4.6 any indirect, special or consequential loss or damage.
9.5 Subject always to the provisions of Clauses 9.1, 9.2 and 9.3, the provisions of 9.4 shall not be taken as limiting the right of the Customer to recover as a direct loss:
9.5.1 any additional operational and/or administrative expenses arising from the Supplier's Default;
9.5.2 any wasted expenditure or charges rendered unnecessary and/or incurred by the Customer arising from the Supplier's Default;
9.5.3 the additional cost of procuring replacement services for the remainder of the Contract Period following termination of the Contract as a result of a Default by the Supplier; and
9.5.4 any losses, costs, damages, expenses or other liabilities suffered or incurred by the Customer which arise out of or in connection with the loss of, corruption or damage to or failure to deliver Customer Data by the Supplier.
9.6 Nothing in the Contract shall impose any liability on the Customer in respect of any liability incurred by the Supplier to any other person, but this shall not be taken to exclude or limit any liability of the Customer to the Supplier that may arise by virtue of either a breach of the Contract or by negligence on the part of the Customer, or the Customer's employees, servants or agents.