indicates a contrary intention;
(xliii)
if a word or phrase is given a defined meaning, any other part of speech or grammatical
form of that word or phrase has a corresponding meaning;
(xliv)
a reference to:
A.
a word importing the singular includes the plural (and vice versa), and a word
indicating a gender includes every other gender;
B.
a person includes an individual, the estate of an individual, a corporation, a
Government, an authority, an association or a joint venture (whether incorporated
or unincorporated), a partnership and a trust; and
C.
a reference to a statute includes its delegated legislation and a reference to a
statute or delegated legislation or a provision of either includes consolidations,
amendments, re-enactments and replacements;
(xlv)
" includes" in any form of part of speech is not a word of limitation; and
(xlvi)
a reference to " $" or " dollar" is to Australian currency.
(b)
Where a term is used in this Request for Tender to refer to a Tenderer or to more than one person
or Participant in a Tenderer:
(i)
an obligation of those persons or entities (including of each Participant) is joint and
several;
(ii)
a right of those persons or entities is held by each of them severally; and
(iii)
any other reference to that person or entity or term is a reference to each of those persons
or entities separately.
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APPENDIX 1
DEED OF DISCLAIMER
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Edition 1, Revision 21, September 2017
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DEED OF DISCLAIMER
This Deed Poll is made by ( Tenderer) in favour of Roads
and Maritime Services (
RMS
) in respect of the tender for the design and construction of the [ insert
Project Name] ( Project).
1.
In consideration of RMS inviting the Tenderer to
participate in Pre-Tender Processes for the Project in
accordance with the Pre-Tender Conditions which have been provided to it by RMS under cover of letter
dated [ insert date] ( "Conditions") and
submit a Tender for the Project ( Tender) in accordance with
the Request for Tender which is to be provided to it by RMS (“ Tender Documents”), subject to
clause 2 of this deed of Disclaimer, the Tenderer:
(a)
warrants that it will not rely upon the Tender Documents
or Information Documents
as being
proper, adequate, suitable and/or complete for the purposes of enabling it to perform the
design and construction obligations which the Tenderer will be required to perform if it
enters into any contract with RMS with respect to the Project ( Project Deed);
(b)
warrants that it will make its own independent evaluation of the Tender Documents'
and
Information Documents'
adequacy, accuracy, suitability and completeness for the purposes of
enabling the Tenderer to perform the obligations which the Tenderer will be required to
perform if it enters into the Project Deed, and it will base the price which it bids as part of its
tender upon its own independent evaluations;
(c)
acknowledges that no representation or warranty (express or implied) has been or is made by
RMS (or by anyone on its behalf) to the Tenderer that the Scope of Works and Technical
Criteria and any other specifications or drawings included in the Tender Documents will
represent a completed or suitable design or that they will be suitable for design and
construction purposes;
(d)
acknowledges that:
(i)
RMS will provide it with the Information Documents (and for that purpose, any
information, opinion, data or document which is provided (including verbally or
visually) by RMS at, or following from, any pre-tender or tender briefing, or as part of
the Pre-Tender Processes will constitute 'Information Documents');
(ii)
the Information Documents:
A.
will be provided by RMS for the information only of the Tenderer; and
B.
do not form part of the Tender Documents and will not form part of any
contract with respect to the Project;
(iii)
RMS does not owe any duty of care to the Tenderer with respect to the Information
Documents;
(iv)
to the extent that RMS is not the author or source of any of the Information
Documents it merely passes those documents on to the Tenderer and does not adopt
those documents;
(v)
RMS:
A.
is not responsible for; and
B.
makes no representation or warranty in respect of,
the contents of the Information Documents including the accuracy, adequacy,
suitability or completeness of any reports, data, test results, samples, reports or
geotechnical investigations, opinions, recommendations, findings or other information
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contained in the Information Documents;
(vi)
where any information or document is referred to and incorporated by reference in an
Information Document, the Tenderer should not rely upon any summary of the
information or document which appears in the Information Document;
(vii)
no representation or warranty (express or implied) has been made by RMS (or by
anyone on its behalf) to the Tenderer that the Information Documents are accurate,
adequate, suitable or complete for any purpose connected with the Project including
the preparation of its tender and the performance of any obligations which the
Tenderer will be required to perform if it enters into the Project Deed; and
(viii)
it will have the opportunity during the tender period and subsequently to undertake for
itself and to request others to make further enquiries and investigations relating to the
subject matter of the Information Documents and for this purpose must have regard to
the acknowledgments, warranties and releases in this Deed Poll in undertaking its own
enquiries and investigations and in requesting further enquiries and investigations;
(e)
warrants that:
(i)
it will prepare its tender and (if its tender is successful) enter into the Project Deed
based on its own investigations, interpretations, deductions, information and
determinations including (without limitation) its own independent evaluation of the
accuracy, adequacy, suitability and completeness of the Information Documents for
the purposes of the Project including the preparation of its tender and the performance
of any obligations which the Tenderer will be required to perform if it enters into the
Project Deed; and
(ii)
it will not in any way rely upon:
A.
the Information Documents; or
B.
the accuracy, adequacy, suitability or completeness of the Information
Documents,
for any purpose in connection with the Project, including for the purposes of preparing
its tender or entering into the Project Deed;
(f)
acknowledges and agrees that:
(i)
RMS will be providing the Information Documents to the Tenderer in reliance upon
the acknowledgements and warranties contained in this Deed Poll;
(ii)
if RMS accepts its tender, RMS will be accepting its tender and entering into the
Project Deed in reliance upon the acknowledgments and warranties contained in this
Deed Poll; and
(iii)
RMS will not be liable to the Tenderer upon any Claim (to the extent permitted by
law) arising out of or any way in connection with:
A.
the provision of, or the purported reliance upon, or use of, the Information
Documents by the Tenderer or any other person associated with the tender to
whom the Information Documents are disclosed by the Tenderer; or
B.
a failure by RMS to provide any information to the Tenderer;
(g)
irrevocably releases and indemnifies RMS from and against:
(i)
any Claim against RMS by, or liability of RMS to, any person; or
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Edition 1, Revision 21, September 2017
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