STANDARD TERMS AND CONDITIONS
BACKGROUND
(A) Sims Metal Management is the leading global recycler of ferrous and non-ferrous metals, waste electronics and electrical equipment.
(B) The Customer wishes to procure scrap metal recycling services from Sims. Sims wishes to supply such services to the Customer on the terms and conditions of this Agreement.
1. INTERPRETATION
In these standard terms and conditions:
1.1 the following words and expressions will have the following meanings unless the context otherwise requires:
“Agreement” means this Agreement for the provision of Services;
“Business Day” means a day that is not a Saturday, Sunday or public or bank holiday in the State of Texas;
“Company” or “Sims” means Sims Group USA Holdings Corporation, any of its trading divisions and group companies;
“Conditions” means these standard terms and conditions of purchase together with any operational terms agreed in writing between the Customer and the Company in the Purchase Contract.
“Duly Authorised Representative” means the representatives of the Company as outlined in the Purchase Contract who is authorised to enter into a binding Contract for the purchase of Goods from the Customer and/or any statutory officer of the company;
“Excluded Goods” means goods other than the Goods, including without limitation, any goods which may be specified or defined as ‘Excluded Goods’ in the SOW or otherwise communicated to Customer by Sims from time-to-time;
“Goods” means any ferrous and non-ferrous goods which the Customer agrees to supply to the Company (including any of them or any part of them);
“Insolvent” means in respect of either Party:
(i) a party passing a resolution for its winding up, or a court of competent jurisdiction making an order for it to be wound up or dissolved or that party being otherwise dissolved; or
(ii) the appointment of an administrator of, or the making of an administration order in relation to, either party, or the appointment of a receiver or administrative receiver of, or an encumbrancer taking possession of or selling, the whole or any part of the entity’s undertaking, assets, rights or revenue; or
(iii) that party entering into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them, or taking steps to obtain a moratorium, or making any application to a court of competent jurisdiction for protection from its creditors; or
(iv) that party being unable to pay its debts, or being capable of being deemed unable to pay its debts; or
(v) that party entering into any arrangement, compromise or composition in satisfaction of its debts with its creditors.
“Intellectual Property Rights” means all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, rights in Know-How, registered trademarks, registered designs, models, unregistered design rights, unregistered trademarks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the United States of America and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions;
“Know How” means formulae, methods, plans, inventions, discoveries, improvements, processes, performance methodologies, techniques, specifications, technical information, tests, results, reports, component lists, manuals and instructions;
“Price(s)” means the price(s) as outlined in the Agreement;
“Purchase Contract” means contract formed in accordance with section 2 of these Terms and Condition;
“Customer” means the person(s) outlined in the Agreement;
“Services” means the services (including any part thereof) to be performed by Sims or its Affiliates as set out in in the Agreement;
“Specification” means in relation to the Goods, the technical specifications, industry classification or grade, including weight and volume of those Goods which may be communicated to/from the Customer and/or outlined in the Agreement, including but not limited to: all information of any description which explains the quality, type and/or functionality of the Goods;
“Term” means the duration of the of the engagement between Sims and the Customer as outlined in the Agreement or if no term is outlined, one year terms commencing from the date of last signature on the Agreement;
1.2 all headings are for ease of reference only and will not affect the construction or interpretation of the Conditions;
1.3 unless the context otherwise requires:
1.3.1 references to the singular include the plural and vice versa; and
1.3.2 references to any gender include every gender
1.4 references to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time;
1.5 any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them; and
1.6 an obligation on a party to procure or ensure the performance or standing of another person will be construed as a primary obligation of that party.
2. FORMATION AND INCORPORATION
2.1 Subject to any variation under Condition 2.8, each collection or delivery of the Goods by or to Sims during the Term will at all times be subject to these Conditions and will be deemed a separate Purchase Contract on each occasion formed upon these Conditions, to the exclusion of all other terms and conditions, including any terms or conditions which the Customer purports to apply under any acknowledgement or confirmation of order, quotation, Specification, delivery note, invoice or similar document, whether or not such document is referred to in the Purchase Contract.
2.2 Sims will collect and recycle, either through reuse or sale for reuse, scrap metal from participating Customer locations. Sims will respond within a reasonable time when notified by a participating Customer location to collect scrap metal. To facilitate collection, Sims may in its discretion supply to the Customer (at Customer’s risk), skips/bins to store at its site(s). If the Customer is delivering the bins or the Goods to Sims, such deliveries will take place within two days’ from Sims’ request.
2.3 For the avoidance of doubt, the Customer will be fully responsible for the Sims bins located at its locations and will fully indemnify Sims from any loss, including without limitation any: claims, damage, injury and/or death arising from or to such bins while these are located at Customer sites.
2.4 Each notification to collect/pick-up the Goods from the Customer will be deemed to be an offer by the Customer to supply the Goods upon these Conditions. The Purchase Contract will only formed when Sims collects the Goods (where Goods collected by Sims) or Sims accepts the Goods (where Goods are delivered by the Customer) at its facility in accordance with clause 7 below.
2.5 All Purchase Contract (including any orders) by the Company to the Customer will be upon these Conditions to the exclusion of all others.
2.6 Delivery of the Goods to the Company will be deemed conclusive evidence of the Customer’s acceptance of the Conditions.
2.7 The Customer may not cancel the Purchase Contract once formed. The Company is entitled to cancel the Purchase Contract in whole or in part at any time prior to delivery/collection of the Goods in which event the Company’s sole liability will be to pay to the Customer the Price(s) for Goods actually received by the Company. For the avoidance of doubt the Customer may terminate the Agreement in accordance with clause 11.4.
2.8 Save as otherwise expressly provided in the Purchase Contract, no variation to the Conditions will be effective unless it is in writing and signed by a Duly Authorised Representative on behalf of the Company.
2.9 No contract will be deemed valid if the conditions of this clause 2 are not met.
3. THE GOODS
3.1 Sims shall weigh the Goods once it arrives at its site. Unless otherwise agreed, the weight or unit count of any consignment of Goods as recorded by Sims or its Affiliates upon delivery of the Goods at the Premises will be conclusive evidence of the weight or unit count of Goods received by Sims and/or its Affiliates and will form the basis of the Price calculation. For the avoidance of doubt, a signature of receipt of a consignment by a representative of Sims or its Affiliates on a carrier’s delivery note will not be evidence of the contents or weight of the consignment received at the Premises.
3.2 The Customer will comply with all applicable standards, regulations and other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods.
3.3 If the Company agrees to purchase from the Customer Goods by way of sale by sample than the Customer confirms that that the Goods supplied will correspond to the quality of the sample provided.
3.4 The Company will have the right to inspect the Goods at any time prior to collection/delivery. The Customer will not unreasonably refuse any request by the Company to carry out such inspection and testing and will provide the Company with all access and support reasonably required to do so.
3.5 Notwithstanding any such inspection or testing, the Customer will remain fully responsible for the Goods and any such inspection or testing will not diminish or otherwise affect the Customer’s obligations under the Contract.
3.6 The Customer acknowledges that conformity with the Contract is of the essence and the Company will, at its option, be entitled to reject the Goods or terminate the Contract under the terms of these Conditions if the Goods (or a portion thereof) are not in conformance with expectation.
3.7 The Customer will not supply Excluded Goods to Sims its Affiliates and its authorised subcontractors without Sims’ prior written approval and agreement on the services required and the price to be charged.
3.8 Before delivery of the Goods takes place the Customer will notify Sims in writing of any hazardous substances or any other potential hazard contained in or relating to the Goods and thereafter information concerning any changes in such substances or hazard that it is (or ought reasonably to be) aware of.
3.9 Sims may at any time request a specification for the Goods Sims and/or its Affiliates believe that the Goods contain hazardous substances or other potential hazard. If the Customer is unable to produce a Specification for the Goods on request, then Sims and its Affiliates may at the Customer’s sole cost carry out testing of the Goods on the Customer’s behalf to produce a Specification. Sims shall not be in breach of its obligations under this Agreement and may reject the Goods if the Customer does not either supply a Specification or allow Sims and its Affiliates to produce a Specification for the Goods.
4. PRICE
4.1 The Seller accepts that, all Prices listed in the Agreement and/or in Purchase Contract are indicative only and subject to change. Notwithstanding anything contrary to this in the Agreement, Sims will update the Customer regularly (including verbally) as to the prices payable by Sims for the Goods which are either collected or delivered. All references to formulas and indices provided or communicated to the Customer during the Term are for guidance only and for the avoidance of doubt the Customer agrees that all monies paid to it for each delivery/collection are in full and final settlement for the Goods received by Sims and no further sums will be due beyond those remitted to Customer by Sims.
4.2 Any sum payable under the Contract is exclusive of any applicable taxes, duties, fees and levies imposed from time to time by any government or other authority and will be payable in addition to that sum in the manner and at the rate prescribed by law from time to time, subject to receipt by the paying party of a valid value added tax invoice. In addition all monies to be paid by the Company in connection with the purchase of the Goods are the Prices which will be inclusive of all costs and expenses unless agreed to the contrary by the Parties.
5. PAYMENT
5.1 Subject to the Customer performing its obligations in accordance with the terms of the Contract, the Company will pay the Prices to the Customer in accordance with this clause 5.
5.2 Sims may:
5.2.1 at its discretion provide a financial settlement to the Customer at the end processing of the Goods; or
5.2.2 pay the Customer for the Goods at the point of Delivery; or
5.2.3 pay in advance of Delivery of the Goods; or
5.2.4 pay against an invoice of the Customer received after Delivery of the Goods.
5.3 If an invoice is issued by the Customer, either prior to or after Delivery of the Goods, Sims may remit such funds to the Customer within forty-five days of Delivery. Where applicable, each invoice will be a valid tax invoice and will contain the following information: date of invoice, invoice number, period to which the invoice relates, goods to which the invoice relates and vat. The invoice will be sent to the Company at the address as may be notified by the Company to the Customer from time to time.
5.4 The Company will be entitled to set-off any liability which the Customer has to it against any liability which it has to the Customer, whether such liability is present or future, liquidated or unliquidated, under the Contract or any other contract between the parties or other cause of action and irrespective of the currency of its denomination.
5.5 No pre-payment made by the Company will constitute acceptance by the Company of the Goods or otherwise prejudice any rights or remedies which the Company may have against the Customer including the right to recover any amount overpaid or wrongfully paid to the Customer.
6. INSTALLMENTS
6.1 The Customer may not deliver the Goods by separate instalments in stages or invoice the Price for an instalment separately unless agreed by the Company. If the Company does agree, each shipment will be construed as a separate Purchase Contract, and without prejudice to any other right or remedy, the Company will have the right, but not the obligation, to:
6.1.1 treat all the Contracts for the total Purchase Contract as repudiated if the Customer fails to deliver or perform any instalment or stage; and
6.1.2 reject any or all of the instalments for the total Purchase Contract if the Company is entitled to reject any one instalment.
7. DELIVERY OF GOODS
7.1 If the Goods are to be delivered by the Supplier to the Company’s place of business or the address stated on the Purchase Contract, the Customer will off-load the Goods at its own risk as directed by the Company.
7.2 The Goods will be delivered on the date or within the period specified in the Purchase Contract, or if no such period is specified then within 30 days of the date of the Purchase Contract.
7.3 The Customer will ensure that:
7.3.1 the Goods are marked in accordance with the Company’s instructions and any applicable regulations or requirements of the carrier and/or properly packed and stored so as to reach their destination in an acceptable condition;
7.3.2 each delivery will be accompanied by a delivery note which will show, inter alia, an order number, date of order, number or volume of the material supplied and, in the case of part delivery, the outstanding balance remaining to be delivered; and
7.3.3 before delivery or performance the Company is provided in writing with a list by name and description of any harmful or potentially harmful properties or ingredients in the Goods supplied whether in use or otherwise.
7.4 The Company reserves the right to mark, separate or quarantine the Goods immediately on delivery. This is undertaken for the purposes of security and the Company will not be deemed to have accepted the Goods by reason of this nor will the Customer be entitled to raise an objection on this ground to any subsequent rejection of the Goods.
7.5 No Goods supplied under the Contract earlier than the agreed date for delivery will be accepted or paid for unless the Company notifies the Customer of its intention to accept and pay for the same.
7.6 Without prejudice to the Company’s other rights under the Contract, if the Goods are delivered to the Company in excess of the quantities ordered, the Company will be entitled to either retain and pay for the excess in line with the Price(s) (provided that the excess delivered is of the same or similar quality as the Goods) or reject the excess goods and return them to the Customer at the Customer’s expense.
7.7 The Company will not be deemed to have accepted the Goods until it has had fourteen (14) days to inspect them following delivery (“Acceptance”). The Company will also have the right to reject the Goods within fourteen (14) days from the date of inspection if the Goods do not comply with the relevant Contract or contain unprocessable Goods or are, in Sims’ or its Affiliates’ reasonable opinion, not packaged safely. For the avoidance of doubt, payment for the Goods at the point delivery will not be deemed as acceptance of the Goods.
7.8 If the Goods are not delivered on the date set out in the Purchase Contract or as agreed by the Parties, then, at its option, the Company may terminate the Contract and claim damages for any losses incurred as a result of a breach of this clause 7.8.
8. RISK/OWNERSHIP
8.1 Risk in the Goods will pass to Sims on acceptance by it as per clause 7 above. Title in the Goods will pass to: (a) the Company on delivery if Goods are delivered by Customer, (b) on depositing the Goods in the bins if bins are provided by Sims at Customer locations and/or (c) on collection of the Goods if no bins are provided by Sims.
9. INTELLECTUAL PROPERTY
9.1 If required for the effective performance of the Contract, the Parties authorises the other to use the Intellectual Property Rights of the other Party for the purposes of exercising its rights and performing its obligations under the Contract. The Parties will have no other rights whatsoever in respect of the Intellectual Property Rights of the other.
9.2 The Customer warrants that neither the Goods, nor their use, resale or importation, infringes the Intellectual Property Rights of any person except to the extent that any infringements arise from any Specifications, drawings, samples or descriptions provided by the Company.
WARRANTY INDEMNITY AND CANCELLATION
10.1 The Customer warrants ,represents and undertakes to the Company that the Goods:
10.1.1 will be of satisfactory quality, and fit for any purpose held out by the Customer or made known to the Customer either in writing or orally at or prior to the Contract being formed;
10.1.2 the bulk of the Goods will be accordance to the description or sample if the sale is by sample;
10.1.3 will correspond in every respect with any Specifications, samples or descriptions provided to the Company; and
10.1.4 will comply with all statutory requirements, regulations and voluntary codes of conduct relating to the Goods and their sale, supply and transportation.
10.2 Without prejudice to any other rights or remedies of the Company (whether express or implied), if the Customer breaches any terms of the Contract (including a failure or delay in delivery) or the Company terminates the Contract pursuant to the terms of this Contract then the Company may (but will not be obliged) to, whether or not the Goods have been accepted:
10.2.1 cancel any or all remaining instalments or stages if the Contract has not already been terminated;
10.2.2 refuse to accept any subsequent delivery of the Goods which the Customer attempts to make; and
10.2.3 claim damages for any additional costs, loss or expenses incurred by the Company which are in any way attributable to the Customer’s breach of the Contract or failure to deliver the Goods on the due date or at all.
10.3 The Customer will indemnify, keep indemnified and hold harmless the Company in full and on demand from and against all liabilities which the Company incurs or suffers directly or indirectly in any way whosoever as a result of a breach of, or a failure to perform or defect or delay in performance or negligent performance of, any of the Customer’s obligations under the Agreement.
11. TERMINATION
11.1 If the Customer:
11.1.1 commits a material breach of the Agreement which cannot be remedied; or
11.1.2 commits a material breach of the Agreement which can be remedied but fails to remedy that breach within thirty (30) days of a written notice setting out the breach and requiring it to be remedied being given by the Company, the Company may terminate the Agreement immediately by giving written notice to that effect to the Customer.
11.2 The Company may terminate the Agreement immediately by giving written notice to that effect to the Customer if the Customer becomes Insolvent.
11.3 Following expiry or termination of the Contract:
11.4 Either Party may terminate this convenience at sixty (60) days written notice to the other.
12. CUSTOMER OBLIGATIONS
12.1 The Customer will comply with all of its obligations in a reasonable and timely manner. Without prejudice to the foregoing, the Customer and its Affiliates will at all times: (a) provide Sims and its Affiliates with timely and reasonable instructions and directions in relation to the carrying out of the Services; (b) respond promptly to requests for information or directions which Sims or its Affiliates or its authorised subcontractor requests in order to carry out the services; (c) notify and consult with Sims and/or its Affiliates immediately in the event that the Customer or its Affiliates become aware of any problems or potential problems arising in relation to the performance of the Services; (d) not, at any time, obstruct the provision by Sims, its Affiliates and its authorised subcontractors of the Services or do any act which would jeopardise or increase the cost to Sims its Affiliates and its authorised subcontractors of the provision of the Services; (e) obtain and maintain in force all memberships, licences, registrations, approvals, consents or qualifications necessary to perform its obligations under this Agreement or otherwise in respect of the Services and (f) comply with all applicable laws.
13. GENERAL
13.1 Time will be of the essence in respect of all dates, periods and timescales with which the Customer is required to comply under the Agreement and any dates, periods and timescales which may be substituted for them by the agreement in writing of the parties.
13.2 The Company’s rights and remedies set out in the Conditions are in addition to and not exclusive of any rights and remedies provided by law.
13.3 If any term of the 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.
13.4 A delay in exercising or failure to exercise a right or remedy under or in connection with the Agreement will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
13.5 This documents outlines the entire agreement between the parties, all agreements and their terms which have been executed prior to this are void and the relationship of the Parties is governed solely under the terms of this agreement.
13.6 The Customer will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under the Agreement or to sub-contract any of its obligations under the Agreement without the Company’s prior written consent. Such consent to be unreasonably withheld.
13.7 The Company will be entitled to assign, transfer, charge, hold on trust for any person and deal in any other manner with any of its rights under the Agreement and to sub-contract any of its obligations under the Agreement.
13.8 Nothing in this Condition 12will be interpreted or construed as limiting or excluding the liability of any person for fraud or fraudulent misrepresentation.
13.9 It shall comply at all times with Sims’ policies, codes, and procedures located at https://www.simsltd.com/governance/ which are hereby incorporated in their entirety into this Agreement.
14. NOTICE
14.1 Any notice or other communication given under or in connection with the Agreement will be in writing, and sent recorded delivery/airmail post to that party’s address.
14.2 Any notice or communication given in accordance with Condition 13.1 will be deemed to have been served if signed for at delivery.
15. LIMITATION OF LIABILITY
15.1 COMPANY, INCLUDING ITS AFFILIATES’ MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT AND/OR PURCHASE CONTRACT WHATSOEVER (INCLUDING WITHOUT LIMITATION UNDER ANY SOW) (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, RESTITUTION UNDER ANY INDEMNITY OR OTHERWISE) FOR ANY DAMAGE OR LOSS HOWSOEVER CAUSED WILL BE LIMITED TO TEN THOUSAND UNITED STATES DOLLARS ($10,000.00). NOTWITHSTANDING THE FOREGOING, NEITHER PARTY OR THEIR RESPECTIVE AFFILIATES EXCLUDE THEIR LIABILITY (IF ANY) TO THE OTHER PARTY OR THEIR RESPECTIVE AFFILIATES FOR ANY MATTER WHICH IT WOULD BE ILLEGAL FOR A PARTY TO EXCLUDE OR TO ATTEMPT TO EXCLUDE ITS LIABILITY FOR.
15.2 COMPANY WILL NOT BE LIABLE UNDER ANY CONTRACT WHATSOEVER (INCLUDING WITHOUT LIMITATION UNDER ANY SOW) (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, RESTITUTION UNDER ANY INDEMNITY OR OTHERWISE) FOR ANY LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF GOODWILL, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA OR ANY INDIRECT OR CONSEQUENTIAL LOSS OR DAMAGE HOWSOEVER CAUSED WHETHER OR NOT THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
16. GOVERNING LAW AND JURISDICTION
16.1 This Agreement and any Agreement hereunder shall be governed by and construed in accordance with the laws of the State of Texas (without reference to the conflicts of laws principles thereof).