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EGRP Redevelopment Project - Pro Forma Direct Deed (Execution Version)Commercial in Confidence16. General16.1 Relationship of the State, Project Co and Key Subcontractor(a)(b)No duty of good faith is implied on the State in connection with its relationship withthe Key Subcontractor.Nothing in this document nor the relationship created by it, is intended to create,and will not be construed as:(i)(ii)creating any partnership or joint venture as between the State and theKey Subcontractor or Project Co; orconstituting a relationship between the State and the Key Subcontractoror Project Co of principal and agent.16.2 State’s rights, duties, powers and functions(a)(b)(c)(d)(e)(State's own interests): Unless this document expressly provides otherwise,nothing in this document gives rise to any duty on the part of the State to considerinterests other than its own interests when exercising any of its rights or performingany of its obligations in accordance with the State Project Documents.(State's powers, functions or duties): Notwithstanding anything contained orimplied in this document to the contrary, the parties expressly agree that the Stateis not obliged to exercise a power, function or duty which is granted to or within theresponsibility of any other Governmental Agency, or to influence, over-ride or directany Governmental Agency in the proper exercise and performance of its legalduties and functions.(No fettering): Nothing contained in this document or contemplated by thisdocument has the effect of constraining the State or placing any fetter on theState's discretion to exercise or not to exercise any of its statutory rights, duties,powers or functions.(No Claim): Neither Project Co nor the Key Subcontractor will be entitled to makeany Claim against the State for any Liability relating to any exercise or failure of theState to exercise its statutory rights or duties.(Liability for breach): Paragraphs (a) to (d) do not limit any Liability of the Statewhich the State would have had to Project Co or the Key Subcontractor inaccordance with this document as a result of a breach by the State of a term of thisdocument but for paragraphs (a) to (d).16.3 Reasonable endeavoursIf there is any statement in this document that the State will use "reasonable endeavours" inrelation to an outcome it means that:(a)(b)(c)the State will take steps to bring about the relevant outcome so far as it isreasonably able to do so having regard to its resources and other responsibilities;the State cannot guarantee the relevant outcome; andthe State, by undertaking to exercise reasonable endeavours, is not required to:(i)(ii)interfere with or influence the exercise of any statutory power ordiscretion by any body, including a Governmental Agency; oract in any other way that the State regards as not in the public interest.25
EGRP Redevelopment Project - Pro Forma Direct Deed (Execution Version)Commercial in Confidence16.4 Entire agreementThis document constitutes the entire agreement and understanding between the parties andsupersede any prior agreement (whether in writing or not), negotiations, discussions,understandings and agreements between the parties in relation to the subject matter of thisdocument.16.5 CounterpartsThis document may be executed in any number of counterparts and all of such counterpartstaken together will be deemed to constitute one and the same instrument.16.6 Governing lawThis document is governed by and will be construed according to the Laws of WesternAustralia and the parties irrevocably submit to the non-exclusive jurisdiction of the courts ofthat State and the courts competent to determine appeals from those courts.16.7 No Waiver(a)(b)Failure to exercise or enforce or a delay in exercising or enforcing or the partialexercise or enforcement of any right, power or remedy provided by Law or thisdocument by the State will not in any way preclude, or operate as a waiver of, anyexercise or enforcement of that or any other right, power or remedy provided byLaw or this document.No waiver by the State of a breach of any term of this document will operate as awaiver of another breach of that term or of a breach of any other term of thisdocument.16.8 Variations and waiversNo variation, modification or waiver of any provision in this document, nor consent to anydeparture by any party from any such provision, will be of any effect unless it is in writing andsigned by the parties or (in the case of a waiver) by the party giving it. Any such variation,modification, waiver or consent will be effective only to the extent to or for which it may bemade or given.16.9 AmendmentsThis document may only be varied by a deed executed by or on behalf of each party.16.10 Joint and several liability(a)(b)If Project Co consists of more than one person, then the rights and obligations ofProject Co in accordance with this document are joint and several as betweenthose persons.If the Key Subcontractor consists of more than one person, then the rights andobligations of the Key Subcontractor in accordance with this document are joint andseveral as between those persons.16.11 Indemnities(a)(b)Each indemnity in this document is a continuing obligation, separate andindependent from the other obligations of the parties, and survives termination orexpiration of this document.It is not necessary for a party to incur expense or to make any payment beforeenforcing a right of indemnity conferred by this document.26
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Direct Deed - Department of Treasury - The Western Australian ...

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