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Applicable Law: |
Jurisdiction: | Negligence - Wilful: |
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Consequential loss: |
Liability: | Negligent Act: |
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Contracting Parties |
Liability Cap: | Negligent Omission: |
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Contributory Negligence: |
Limitation of Liability: |
Prejudice Insurer: |
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Governing Law: |
Loss: | Release: |
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Hold Harmless: |
Mutual Terms: | Third Party: |
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Indemnify: |
Negligence: | Vicarious Liability: |
Applicable Law:
(Refer also to Governing Law) The law specified in the contract that will apply to any contractual disputes. UniSA should specify South Australia wherever possible, so South Australian legislation and common law is applied to the dispute. (Refer also to Jurisdiction)
Consequential loss:
Intangible items including loss of revenue, loss of profits, loss of business, loss of data, loss of goodwill, loss of value of equipment (other than cost of repair), expectation loss, and any forms of special, indirect, punitive or exemplary loss or damage (not an exhaustive list). Consequential losses may be either direct or indirect losses, the common law position is quite complicated on this topic so avoid “picking winners” by attempting to define what consequential losses are.
Contracting Parties:
Signatories to the contact.
Contributory Negligence:
An indemnified party will have their indemnity reduced by the extent that a negligent act or omission on their part has contributed to a loss or liability.
Governing Law:
(Refer also to Applicable Law) The law specified in the contract that will apply to any contractual disputes. UniSA should specify South Australia wherever possible, so South Australian legislation and common law is applied to the dispute. (Refer also to Jurisdiction)
Hold Harmless:
Means a party to a contract (Party 1) will completely relieve the other contracting party (Party 2) from any liability for a loss sustained by Party 1 as a result of a negligent act or omission on the part of Party 2. The term “Release” may be used in exchange for “Hold Harmless”. The insurance office recommends against accepting these clauses as they will prejudice the insurers subrogation rights.
Indemnify:
Means a party to a contract (Indemnifying Party) will compensate the other contracting party (Indemnified Party) for a loss sustained, either by the Indemnified Party or a Third Party to the contract, to put the Indemnified Party back into the position they were prior to the loss.
Jurisdiction:
Thi sis the locale where a dispute will be heard. A choice of jurisdiction clause is distinct from a choice of law clause, which nominates the governing law of a contract i.e. a dispute may be heard in NSW with SA law being applied. Jurisdiction and Governing law should be considered together when drafting a contract. We should request South Australian jurisdiction so any actions are dealt with locally.
Example: The laws of South Australia govern this agreement and each party submits to the jurisdiction of the courts exercising jurisdiction in South Australia.
Liability:
May be incurred in a situation in which an entity is held legally responsible for injuring or financially harming another party as is obliged to indemnify the injured party.
Liability Cap:
A $ amount specified as the maximum value to be paid by one Contracting Party to another. This may be a specific $ value or some multiple of a contract value, annual fees, or fees paid in the last 6 months or some variation of these. The liability cap amount usually bears no relation to the magnitude of the possible losses that may be sustained. The insurance office recommends against accepting these clauses as they will prejudice the insurers subrogation rights. If accepting a liability cap to be applied to losses sustained by UniSA ensure the cap is specified as “per event” and not “in aggregate” as this is more favourable to UniSA.
Limitation of Liability:
Limits the liability of one contracting party to the other.
Loss:
Includes damage to property; an injury to a person; or consequential losses.
Mutual Terms:
Where the terms of a clause apply equally to each party to the contract.. When reviewing these types of terms a consideration should be whether each party to the contract has an equal exposure under these clauses i.e. a mutual limitation of liability clause is of little value to UniSA when it is applying to an activity governed by the contract where UniSA is a passive participant and therefore has little liability exposure.
Negligence:
When a party acts in a careless way and causes an injury or loss to another party, under the legal principle of "negligence" the careless person will be legally liable for any resulting harm. Negligence can arise from careless acts or omissions. The careless act or omission may incur a legal liability to indemnify the injured party. Negligence claims must prove four things: a duty of care exists between the parties concerned, breach of the duty of care, causation, and damages/harm.
Negligence - Wilful:
A person knowingly engages in reckless conduct, or. Intentionally disregarded the risk of harm to others, this is excluded by UniSA’s insurances.
Negligent Act:
Is active in that a party has performed an act with careless disregard to the possible consequences of performing the act.
Negligent Omission:
Is passive in that a party has failed to do something that a reasonable person would have expected them to do i.e. failure to erect a warning sign to alert someone of an imminent present danger such as hazardous substances.
Prejudice Insurer:
Where the act of UniSA has compromised the rights of the Insurer, this includes accepting unfavourable contract terms that inhibit Insurer subrogation rights.
Release:
Refer to “Hold Harmless”.
Third Party:
This is an external entity who is not a party to the contract. They may suffer a loss for which they can choose to claim compensation from either one or both of the contracting parties. Usually they will pursue the contracting party with the most money (Deep Pockets” concept).
Vicarious Liability:
Occurs where one person is held liable for the negligent actions of another. It is commonly relied upon for negligence on the part of employees carrying out their duties. In most cases the employer will be vicariously liable for the employee’s negligence. For UniSA this may also extend to a student, contractor, sub-contractor or agent whilst they are performing UniSA approved tasks or activities that form part of their UniSA role.