1. Costs borne by Respondents
Any and all costs and expenses incurred by Respondents in any way associated with the Site, preparation and submission of a Response and participation in the ROI, including attending meetings and discussions and providing additional information if required, will be entirely borne by the Respondents.
2. Discussions with Respondents
Any discussions with potential Respondents during the ROI period cannot be relied upon unless subsequently confirmed in writing by PDNSW, DPE, and/or the Project Partner (as relevant).
3. Intellectual Property
PDNSW and DPE are conscious of the need to protect the intellectual and financial property of Respondents. Feedback and commentary that contain elements of intellectual property will be treated with the strictest confidence.
Intellectual property is to be distinguished from confidential information. The entitlement of a person to intellectual property does not depend on secrecy, but consistent with the general obligation of confidentiality, the intellectual property of each Respondent will be kept confidential.
A Respondent should clearly indicate if any part of its Response constitutes intellectual property, in the sense of property recognised and protected by law. Any claim by a Respondent that information constitutes intellectual property will be assessed and a Respondent may be asked to establish its propriety interest before the claim is accepted.
4. Absence of obligations
No legal or other obligation will arise between a Respondent, PDNSW, DPE and the Project Partner.
This ROI constitutes an invitation to Respondents to submit an ROI submission. By this ROI, Respondents are invited to submit an ROI submission but this ROI does not constitute an offer capable of legal acceptance and creates no legally enforceable obligation on, nor is there any contract involving DPE, PDNSW and/or the Project Partner despite any obligation, duty or responsibility whether enforceable or otherwise which this ROI purports to impose on, or is accepted by, PDNSW, DPE and/or the Project Partner and notwithstanding any claim made by any Respondent based upon contract, quasi contract, estoppel, negligence or any statutory or other basis.
Without limitation, neither PDNSW, DPE nor the Project Partner is liable to any Respondent or applicant on the basis of any contractual, quasi-contractual, restitutionary ground or in negligence as a consequence of any matter or thing relating to or incidental to a Respondent’s participation in the ROI process.
5. Right to amend process
PDNSW and DPE reserve the right to amend or terminate the process set out in this ROI by notice in writing to Respondents who have not withdrawn from the ROI process.
PDNSW and DPE reserve the right to accept responses to the ROI after the Closing Time in its absolute discretion.
This ROI is not exclusive and it is not a prerequisite to participating in future ROIs, expressions of interest or any other procurement process in relation to this Site.
6. PDNSW and DPE rights
In addition to its rights set out elsewhere in this ROI document, PDNSW and DPE may at any time and without giving reasons:
(a) extend the Closing Time at any time before the Closing Time by notice to potential Respondents;
(b) request any Respondent to submit an offer;
(c) amend, suspend, discontinue or terminate the process set out in this ROI document by notice in writing to one or more Respondents;
(d) provide additional information or clarification to Respondents;
(e) not proceed with this ROI, in the manner set out in this ROI document, or at all;
(f) not proceed with a further stage;
(g) accept or reject any ROI submission which:
(i) is late;
(ii) is in any way incomplete or irregular;
(iii) does not comply with any requirements of this ROI document,
and PDNSW and DPE’s decision to exercise any or none of the rights in this ROI document is final, and neither the PDNSW or DPE will be liable to a Respondent because PDNSW and/or DPE have exercised any or none of its rights contained in this ROI document.
PDNSW and DPE may exercise their rights in this clause 6 with respect to multiple Respondents at the same time.
7. Disclaimer
Respondents must rely on their own investigations and satisfy themselves in relation to all aspects of the project and this ROI. PDNSW and DPE’s respective employees, officers and consultants are not liable for any incorrect or misleading information or failure to disclose information whether in connection with this document or at any other time.
PDNSW and DPE reserve the right to review and change the information contained in this document by notice in writing to Respondents who have not withdrawn or been excluded from the ROI process.
While the information in this ROI has been formulated with all due care, neither PDNSW or DPE warrants or represents that any information provided to Respondents is free from errors or omissions. Respondents must form independent judgments about any information in this ROI and make their own enquiries.
The information is made available on the understanding that PDNSW and DPE, and PDNSW’s and DPE’s respective personnel will have no liability (including liability by reason of negligence) for any loss, damage, cost or expense incurred or arising by reason of any person using or relying on the information and whether caused by reason or any error, omission or misrepresentation in the information or otherwise.
8. Discretion of PDNSW and DPE
PDNSW and DPE may exercise any power, right, discretion or remedy (however described) under this ROI, in their absolute discretion, unless this ROI document expressly contemplate otherwise.
PDNSW and DPE reserve the right to accept an ROI submission that is not in accordance with this ROI document.
9. NSW Government Supplier Code Conduct and the Procurement Guidelines
Respondents must comply with and must take reasonable steps to ensure that its employees and comply with the NSW Government Supplier Code of Conduct (as amended) (Code) and the NSW Government Procurement Policy Framework (as amended) (Procurement Guidelines).
The submission of a Response will be an acknowledgement and representation by the Respondent that:
(a) it is aware of the requirements of the Code and the Procurement Guidelines;
(b) it will comply with the Code and the Procurement Guidelines and it will take reasonable steps to ensure that its employees and personnel comply with the Code and Procurement Guidelines; and
(c) it agrees to provide evidence of compliance with the Code and the Procurement Guidelines and access to all relevant information to demonstrate compliance.
Failure to comply with the Code and the Procurement Guidelines will be taken into account by PDNSW and DPE and may result in a Response being excluded from further evaluation and assessment without prejudice to any other right of action or remedies available to PDNSW and DPE.
10. Privacy and Personal Information Protection Notice
Respondents are advised that all (if any) personal information required to be provided with their Response is intended only for use by PDNSW, DPE and/or the Project Partner for the purpose of the assessment of Responses. The information will be stored by PDNSW and/or DPE in accordance with the requirements of the State Records Act 1998 and/or the Personal Information Protection Act 1998 (NSW).
11. GIPA
Respondents are advised that information provided with their Response is subject to the requirements of the Government Information (Public Access) Act 2009 (GIPA Act). The GIPA Act requires all Government entities to release certain information on their website or pursuant to applications made under the GIPA Act (Access Application). The GIPA Act provides appropriate protection for individuals' privacy and includes certain exceptions. All contracts over $150,000 (including GST) Government entities enter into with the private sector must be recorded in the register of the Government contracts which is published on the NSW Government Tenders website. Information on any Respondent’s Response may also be released formally or informally under the GIPA Act and if required under an Access Application.
Respondents acknowledge that neither PDNSW, DPE, PDNSW’s personnel nor DPE’s personnel nor the NSW Government will be liable to any Respondent upon any claim arising out of, or in any way connected with, the disclosure of any information by PDNSW or DPE in accordance with the GIPA Act.
12. Governing law and jurisdiction
This document is governed by the law of New South Wales. Each Respondent irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New South Wales.