(ii)
(without being limited by clause 1(g)(i)) any costs, losses
or damages suffered or
incurred by RMS,
arising out of or in connection with:
(iii)
the provision of, or the purported reliance upon, or use of, the Information Documents
by the Tenderer or any other person to whom the Information Documents are
disclosed by the Tenderer; or
(iv)
the Information Documents:
A.
being relied upon; or
B.
otherwise being used in the preparation of any information
or document,
including any information or document which is "misleading or deceptive" or
"false and misleading" (within the meaning of those terms in the
Competition
and Consumer Act 2010 (Cth), or any equivalent provisions of State or Territory
Legislation),
by the Tenderer or any other person to whom the Information Documents are disclosed by
the Tenderer; and
(h)
irrevocably releases and indemnifies RMS from and against any Claim arising out of or in
connection with any breach by the Tenderer of this Deed Poll: and
(i)
accepts and agrees to be bound by the Conditions
.
2.
The Contractor may
rely on RMS Data, but only for the purposes of Claiming variations and
extensions of time, if otherwise allowable in accordance with, and under, the Project Deed.
3.
In consideration of RMS agreeing to provide the Tenderer with the Tender Documents and the
Information Documents (in this clause 3 jointly called "
Confidential Documents")
, the Tenderer:
(a)
acknowledges and agrees that the Confidential Documents are:
(i)
owned by RMS; and
(ii)
confidential and secret; and
(b)
warrants that it will not:
(i)
copy or otherwise reproduce in any form or medium the contents of the Confidential
Documents (or any part of them) or otherwise cause, permit or allow the Confidential
Documents (or any part of them) to be copied or reproduced in any form or medium;
(ii)
disclose the contents of the Confidential Documents (or any part of them) or otherwise
cause, permit or allow the Confidential Documents (or any part of them) to be
disclosed; or
(iii)
use the contents of the Confidential Documents (or any part of them) or otherwise
cause, permit or allow the Confidential Documents (or any part of them) to be used;
other than:
(iv) for the purpose of its Tender; or
(v)
where the Tenderer enters into a Project Deed, as
permitted by that Project Deed; or
(vi) as required by law or as otherwise permitted by RMS.
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Nothing in this clause 3 will in any way limit clause 1 of this Deed Poll.
4.
In this Deed Poll,
"Claim" includes (without limitation) any claim, action, demand or proceeding:
(a)
under, arising out of, or in connection with the Project Deed;
(b)
arising out of,
or in connection with, any task, thing or relationship connected with the
Project; or
(c)
otherwise at law or in equity including (without limitation):
(i)
by statute;
(ii)
in tort for negligence or otherwise, including (without limitation) negligent
misrepresentation; or
(iii)
for restitution including (without limitation) restitution based on unjust enrichment.
The term "Claim" does not include a claim made against RMS by any third party, other than
a third party to whom the Tenderer disclosed the Information
Documents, arising from a
breach by RMS of an obligation which RMS owes to that third party in relation to the
Information Documents.
"Information Document" means any information, data or document which is:
(a)
referred to in Schedule A and issued by,
or on behalf of, RMS to the Tenderer as a hard copy
document or as an electronic file;
(b)
issued or made available by, or on behalf of, RMS to the Tenderer in connection with the
Conditions (including any Pre-Tender Processes), Request for Tender,
the Tender
Documents or the Project and which at the time of issue (or being made available) is
expressly classified or stated to be an "Information Document";
(c)
issued or made available by, or on behalf of, RMS to the Tenderer in connection with the
Conditions (including any Pre-Tender Processes), Request for Tender or the Project, but
which is not intended to form part of the Request for Tender or the Tender Documents
(regardless of whether or not it is expressly classified or stated to be an "Information
Document"),
including any information, opinion, data or document which is provided
(including verbally or visually) by RMS at, or following from, any of the Pre-Tender
Processes or pre-tender or tender briefing; or
(d)
referred to or incorporated by reference in an Information Document,
whether issued or made available:
(e)
before or after the date of this Deed Poll;
(f)
before or after the Closing Date and Time for Tenders; or
(g)
before or after the date of execution of the Project Deed, other than any document which
RMS is obliged by the terms of the Project Deed to provide to the Tenderer.
"Pre-Tender Processes" has the meaning given to that term in the Conditions.
"RMS Data" means the
RMS Geotechnical Data, RMS Noise Data and RMS Flood Data.
"RMS Flood Data" means raw factual data:
(a)
only within the categories confirmed in Schedule C to be raw factual data; and
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