SCRAP ACCEPTANCE AGREEMENT TERMS AND CONDITIONS

SCRAP ACCEPTANCE AGREEMENT TERMS AND CONDITIONS

The following Terms and Conditions apply to all sales of Goods by Seller to Sims.

1.  DEFINITIONS:

“Agreement” means the Scrap Acceptance Agreement incorporating these Terms and Conditions together with a Weighmaster Certificate or Purchase Contract identifying the type and quantity of Goods being sold to Sims.

“ARD Materials” means any fluids or components ordinarily contained in an operating vehicle, includingfuel, motor oil, coolant, refrigerant, batteries, mercury convenience light switches, and air bag canisters.

“Goods” means various grades of ferrous and non-ferrous recyclable materials.

“Hazardous Materials” means any materials which are considered hazardous or toxic materials, substances, or wastes under applicable Law, including without limitation any Prohibited Materials identified in the Prohibit Materials List located at the end of these Terms and Conditions.

“Law” means federal, state, and local laws, regulations and requirements, and any guidance and interpretation by any applicable regulatory agency and any orders and decisions of any applicable court.

“MRSH” means materials requiring special handling.

“Non-CAR Seller” means a Seller of “major appliances” in California who is not a “certified appliance recycler” (“CAR”) or who did not acquire such “major appliances” from a CAR.

“Purchase Contract” means a contract for the sale of Goods to Sims executed by Seller and Sims.

“Sims” means [the Sims legal entity identified in the Agreement as purchasing the Goods from Seller/Sims Group USA Holdings Corporation or one of its affiliates, which do business under the trade name Sims Metal].

“Terms and Conditions” mean these Scrap Acceptance Agreement Terms and Conditions.

“Weighmaster Certificate” means a certificate issued by the Weighmaster identifying the weight of Goods and includes any terms and conditions of sale set forth or incorporated therein.

2.  ACCEPTANCE: Sims agrees to buy Goods only upon execution of an Agreement and at the price specified therein. Sims shall not be deemed to have accepted the Goods purchased pursuant to an Agreement until such Goods has been approved by Sims at its facility. Sims reserves the right to reject at any time any Goods or load of Goods not conforming to the quality and other requirements of Sims or the Agreement; whereby Seller shall remove from the Sims facility any such rejected Goods or load of Goods, at Seller’s sole cost and risk. Under no circumstances will title to any Goods not as warranted, certified or conforming to the Agreement transfer to Sims.

3. TERM: The initial term of an Agreement shall commence as of the date of the Agreement (or if the Scrap Acceptance Agreement and Weighbridge Certificate or Purchase Contract have different dates, then the later date) and expire two years thereafter, after which time a new Scrap Acceptance Agreement should be executed. However, if no new agreement is executed, the terms of this Agreement shall continue to apply to all sales of Materials until such time as a new Scrap Acceptance Agreement is executed.

4.  SELLER’S OBLIGATIONS:

4.1  Seller shall inspect all Goods prior to delivery and shall not tender to Sims any Nonconforming Goods without prior written approval and agreement with respect to the services required and price to be charged. The foregoing does not apply any portion of Goods which are ARD Materials.

4.2  Notwithstanding the foregoing, Sellers of (1) one or more whole automobiles requiring depollution are not required to remove ARD Materials or (2) “major appliances” who are Non-CAR Sellers are not required to inspect such Goods for MRSH, prior to delivery.

5.  SELLER CERTIFICATIONS: Seller certifies that it owns the Goods free and clear of any liens or encumbrances and that for all Goods, except for ARD Materials and MRSH:

5.1  the Goods are exempt from regulation as a hazardous waste in accordance with applicable Law.

5.3  prior to delivery, all refrigerants (including without limitation chlorofluorocarbons (CFCs), hydrochlorofluorocarbons (HCFCs), and hydrofluorocarbons (HFCs), or non-exempt refrigerant substitutes (and other non-CFC replacement refrigerants), and all other Class I and II substances (as defined in 40 CFR Part 82, Subpart F) pursuant to §608 of the federal Clean Air Act, as amended) that have not leaked previously will be properly removed and recovered from all appliances (including without limitation motor vehicle air conditioners) tendered to Sims. Seller further certifies that Seller either will recover any remaining refrigerant from all appliances (including without limitation motor vehicle air conditioners) in accordance with 40 CFR Part 82.155(a) prior to the delivery of those appliances to Sims or verify that the refrigerant had been properly recovered prior to receipt by the Seller. In addition, Seller certifies that all PCB small capacitors (as defined in 40 CFR Part 761.3), DEHP and other metal-encased capacitors (and other encapsulated PCBs or DEHP), batteries, used oil, liquids, auto convenience-lighting and non-automotive mercury switches and temperature control devices, unspent sodium azide canisters, and all other hazardous waste will be removed from all appliances and motor vehicles prior to tender and disposed of in accordance with applicable Law. Seller is solely responsible for the condition and cleanup of the Goods and any releases therefrom.

5.5  FOR NON-CAR SELLERS ONLY any “major appliances” tendered have not been “processed” in such a manner that could result in the release, or prevent the removal, of MRSH in accordance with California Health & Safety Code §25211-25214 and Public Resources Code §§42167, 42175 & 42175.1.

6.  LIMITATION OF LIABILITY: NOTWITHSTANDING ANYTHING TO THE CONTRARY, SIMS’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WHATSOEVER WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, RESTITUTION UNDER ANY INDEMNITY OR OTHERWISE FOR ANY DAMAGES, LIABILITIES, FEES, OR LOSSES HOWSOEVER CAUSED WILL BE LIMITED TO THE PRICE PAID FOR THE GOODS IN THE LAST TWELVE (12) MONTHS PRECEDING THE CLAIM OR LOSS. SIMS DOES NOT EXCLUDE OR LIMIT ITS LIABILITY (IF ANY) FOR ANY MATTER FOR WHICH IT WOULD BE ILLEGAL FOR IT TO EXCLUDE OR LIMIT OR TO ATTEMPT TO EXCLUDE OR LIMIT ITS LIABILITY. IN NO EVENT SHALL SIMS BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DELAY DAMAGES, LOST OPPORTUNITY DAMAGES, OR LOST PROFITS.

7.  INDEMNITY: Seller agrees to defend, indemnify, release, and hold harmless Sims and its owners, affiliates, and employees (each an “Indemnitee”), from and against any claim, penalty, fine, fee, cost, expense (including attorney and expert fees), loss, obligation, damages, enforcement actions, or any other liability of any kind relating in any way to an Agreement or the Goods or arising directly or indirectly, in whole or in part, from any act or omission of Seller or any third party acting on its behalf. All warranties, certifications, indemnities, and other obligations made by Seller shall survive the expiration of an Agreement.

8.  MISCELLANEOUS:

8.1  This Agreement shall be construed in accordance with the laws of the State of Illinois without regard to conflicts of law principles and expressly excluding application of the U.N. Convention on Contracts for the International Sale of Goods. The parties irrevocably agree to settle any dispute or claim that arises out of or in connection with an Agreement or its subject matter or formation (including contractual disputes or claims) in any state or federal court located in Cook County, Illinois, and they irrevocably submit to the jurisdiction of such court and waive any objections they may have to either the jurisdiction or venue of such court, including without limitation for forum non conveniens.

8.2  These Terms and Conditions may be modified by Sims at any time, without notice to Seller, and such modifications will be effective immediately upon posting. Sales of Goods to Sims shall constitute Seller’s acceptance of the Terms and Conditions in effect at the time of sale.

8.3  Sims may assign, transfer, or delegate any of its rights or obligations under the Agreement.

8.4  Sims’ rights and remedies set out in these Terms and Conditions are in addition to and not exclusive of any rights and remedies provided by Law.

8.5  If any term of an Agreement is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Agreement and this will not affect the remainder of the Agreement which will continue in full force and effect.

8.6  Each Agreement constitutes the entire agreement between the parties with respect to the subject matter thereof and the transactions contemplated thereby to the exclusion of any additional terms and conditions, including Seller’s standard terms and conditions, and supersedes any prior or contemporaneous understandings, agreements, representations, and warranties, both written and oral. Any additional or conflicting terms in any of the Seller’s documents (e.g. proposal, invoice, etc.) are expressly rejected. Seller specifically acknowledges and agrees that it did not enter into the Agreement in reliance upon any agreement, promise, representation, or understanding made by or on behalf of Sims not contained herein.

PROHIBITED MATERIALS LIST

The following materials are prohibited from acceptance at all Sims facilities except by special arrangement:  
1. Non-Metallic Materials, including but not limited to dirt, asphalt, concrete, debris, tires, trash, etc.
2. Non-Hazardous Free-flowing Liquids including but not limited to water.
3. Hazardous Free-flowing Liquids and sludges including but not limited to gasoline, diesel fuel, motor oil, hydraulic fluids, anti-freeze, oil, paint, lubricants, petroleum products and chemicals, except as contained in whole end-of-life vehicles (ELV) purchased by Sims that Sims agrees to depollute (Whole ELV).
4. Flammable and Combustible Materials, and compressed gas and gas cylinders of any kind.
5. Corrosive Materials such as soda ash, acids, and lead-acid batteries, unless purchased separately by Sims.
6. Radioactive Materials of any type, e.g., military scrap, medical scrap, measuring devices, etc.
7. Explosive Materials or potentially explosive materials of any type, such as sealed tanks, munitions scrap, etc.
8. Chemicals or Poisons in solid, powder, liquid, sludge or gaseous form including fertilizers.
9. Infectious Materials (generally placed in red bags or marked by the “infectious” symbol) and Medical Waste.
10. Pressurized Containers or Cylinders including propane tanks, compressed gas tanks, aerosol cans, and fire extinguishers, except when such tanks have been properly cut, uncapped, derimmed or in such a state where easy visual inspection inside the vessel is possible or are independently certified as having been properly vented.
11. Closed Containers Formerly Containing Non-Hazardous Materials, including bulk storage tanks and vessels.
12. Containers Formerly Containing Hazardous Materials including drums, bulk storage tanks, process vessels, paint cans and aerosol cans except if the containers are certified as empty and cleaned per applicable law, and properly cut open so that they can be thoroughly inspected to verify they are empty and clean in accordance with Sims’ empty container requirements.
13. Any Materials Containing CFCs, HCFCs and Refrigerant Substitutes, unless contained in Whole ELV.
14. PCB-containing materials such as capacitors, ballasts, certain underground cables and transformers, etc.
15. Asbestos–containing materials (ACM), such as pipe insulation, surfacing materials, etc.
16. Mercury-containing materials such as switches, fluorescent and mercury vapor lights, fixtures, bulbs and thermostats, except as contained in Whole ELV.
17. Cathode ray tubes (CRTs),liquid crystal displays (LCDs) or any device containing a CRT or LCD such as computer monitors, laptop screens and televisions, except at a designated Electronic Materials receiving area.
18. Hazardous Waste – Any Material containing hazardous or toxic substances and wastes of any kind.
19. ELV manufactured by Volvo model year 1991 or older (where this restriction is applicable).
20. End-of-life materials or other recyclable metal materials comingled with fly ash.
OTHER REQUIREMENTS FOR MATERIAL ACCEPTANCE BY SIMS
Automobiles (except Whole ELV) must have the following items removed prior to delivery (as required by law or Sims policy): petroleum products and other fluids (e.g. vehicle fuel (including gasoline, compressed natural gas or other fuels), motor oil, and hydraulic fluids, coolants, and antifreeze, and washer fluid (in certain states)), refrigerants, batteries, leaded battery cable ends, mercury convenience light switches (including mercury headlamps, back lit displays and other mercury containing devices in certain states), unspent air bag canisters, other hazardous materials and any other materials required by federal or State law to be removed.
Lead Acid Batteries are accepted at most Sims facilities unless cracked, broken, burned or have missing caps.
California – certain “Materials Requiring Special Handling” may remain in certain “major appliances” if the Sims facility has agreed to purchase such appliances as the Certified Appliance Recycler for those appliances.
Electronic Material – Each state has its own requirements regarding which of these materials may be accepted and under what requirements (e.g. a California facility may accept certain “electronic devices” as “Universal Waste”).

Regulatory References

1.           The federal Clean Air Act, 42 U.S.C. § 7401 et seq., as amended (including the Clean Air Act §608) and its implementing regulations at 40 CFR Part 82 (including section 82.156(g)-(h)), requires the proper removal and disposal of refrigerants (including chlorofluorocarbons (CFCs), hydro chlorofluorocarbons (HCFCs), and hydrofluorocarbons (HFCs), or non-exempt refrigerant substitutes (and other non-CFC replacement refrigerants), and all other Class I and II substances (each as defined in 40 CFR Part 82, Subpart F), from motor vehicles and appliances prior to delivery for recycling.

2.           The federal Toxic Substances Control Act (TSCA), 15 U.S.C. § 2601 et seq. and its implementing regulations at 40 CFR Part 761, governs the removal and disposal of polychlorinated biphenyls (PCBs).

3.           Various State laws govern the removal of mercury switches from ELV and other recyclable materials prior to recycling (e.g. New York State’s Environmental Conservation Law 27-2105(1), New Jersey’s Recycling Rules at N.J.A.C. 7:26A and the Mercury Switch Removal Act of 2004 (and proposed amendments at N.J.A.C. 7:26A-1.3, 2, and 2.1 and proposed new rule 7:26A-9.1)).

4.           Various State laws govern the removal, drainage or deployment of certain materials from ELV prior to crushing or delivery for recycling (e.g. New York State’s Environmental Conservation Law 27-2303 to 2305).

5.           Other federal, state and local laws, regulations and ordinances also impose various hazardous material, health & safety and/or environmental requirements on materials delivered for recycling.