5(1)Subject to sub-paragraphs (2) to (4) below, if by reason or in consequence of the construction of the authorised works or any subsidence resulting from any of those works, any damage is caused to any [F1electronic communications apparatus], other than apparatus the repair of which is not reasonably necessary in view of its intended removal for the purposes of those works, or property of the [F2operator of an electronic communications code network], or there is any interruption in the supply of the service provided by the [F3operator], the nominated undertaker shall bear and pay the cost reasonably incurred by the operator in making good such damage or restoring the supply and shall—U.K.
(a)make reasonable compensation to the [F3operator] for loss sustained by it, and
(b)indemnify the [F3operator] against claims, demands, proceedings, costs, damages and expenses which may be made or taken against, or recovered from, or incurred by, the operator, by reason or in consequence of any such damage or interruption.
(2)Sub-paragraph (1) above shall not apply to any apparatus in respect of which the relations between the nominated undertaker and the [F3operator] are regulated by the provisions of Part III of the New Roads and Street Works Act 1991 or to any damage, or any interruption, caused by electro-magnetic interference arising from the construction or use of the authorised works.
(3)Nothing in sub-paragraph (1) above shall impose any liability on the nominated undertaker with respect to any damage or interruption to the extent that it is attributable to the act, neglect or default of the [F3operator], its officers, servants, contractors or agents.
(4)The [F3operator] shall give the nominated undertaker reasonable notice of any such claim or demand and no settlement or compromise thereof shall be made without the consent of the nominated undertaker which, if it withholds such consent, shall have the sole conduct of any settlement or compromise or of any proceedings necessary to resist the claim or demand.
Textual Amendments
F1Words in Sch. 15 Pt. 4 para. 5 substituted (25.7.2003 for specified purposes, 29.12.2003 in so far as not already in force) by Communications Act 2003 (c. 21), Sch. 17 para. 139(4)(a), (with Sch. 18);S.I. 2003/1900, Sch. 1
F2Words in Sch. 15 Pt. 4 para. 5 substituted (25.7.2003 for specified purposes, 29.12.2003 in so far as not already in force) by Communications Act 2003 (c. 21), Sch. 17 para. 139(4)(b), (with Sch. 18); S.I. 2003/1900, Sch. 1.
F3Words in Sch. 15 Pt. 4 para. 5 substituted (25.7.2003 for specified purposes, 29.12.2003 in so far as not already in force) by Communications Act 2003 (c. 21), Sch. 17 para. 139(4)(c), (with Sch. 18; S.I. 2003/1900, Sch. 1.