Subcontractor Terms of Service
Sims Group UK Limited or any of its Affiliates (“Sims”); and
The third party which has signed the above declaration to which these terms of service are attached and its Affiliates (“Sub-Contractor”).
(Each a “Party” together the “Parties”)
Sims is the leading global recycler of waste electronics and electrical equipment and also a provider of comprehensive information technology asset management solutions, of which Sims is a part.
- Sims wishes to appoint the Sub-Contractor to provide the Services, from time to time in the territory in which the Sub-Contractor is based and the Sub-Contractor has agreed to provide such Services on the terms and conditions of this Agreement.
- Now therefore, the Parties agree as follows:
- With effect from commencement date specified below (or if no date is specified, the date on which Sims first sends a request and/or order to Sub-Contractor for Services) (the “Commencement Date”), Sims appoints the Sub-Contractor to provide the Services and the Sub-Contractor agrees to provide the Services to Sims upon the terms and conditions set out in this Agreement.
- The following documents shall be deemed to form part of this Agreement and will have the same force and effect as if expressly set out in the body of this Agreement and any reference to this Agreement will include such documents:
- This Sub-Contract Agreement;
- Schedule 1 (“Statement of Work” or “SOW”);
- If there is any inconsistency or conflict between the above-listed documents, their terms shall apply and take precedence in the order they appear above.
- Notwithstanding earlier termination in accordance with the terms of this Agreement, the Agreement will remain in force for an initial period of twelve months (the “Initial Period”) and thereafter unless and until terminated in accordance with this Agreement.
- DEFINITIONS AND INTERPRETATION
In this Agreement:
- the following words and expressions have the following meanings unless the context otherwise requires:
“Acceptance” means Goods accepted by the Sub-Contactor for the Services in accordance with the procedures set out in this Agreement or any agreed form SOW;
“Affiliate” means the Parties’ parent undertakings, its subsidiary undertakings and the subsidiary undertakings of any of its parent undertakings from time to time;
“Agreement” means the agreement for the provision of Services comprising this Sub-Contract Agreement, and the documents set out in clause E of the recital of this Agreement;
“Americas” Means any jurisdictions located within the continental landmasses of North America (including Central America) and South America. For the avoidance of doubt this does not include any sovereign or overseas territorial island jurisdictions within the specified region;
“Anti-Corruption Policy” means any documents, training, policy or rules supplied by Sims and/or its Affiliates to the Sub-Contractor (prior to or during the term of this Agreement) relating to Sims’ anti-corruption compliance programme which consists of (but is not limited to) the UK Bribery Act and US Foreign Corrupt Practices Act, Sims’ code of conduct, Sims’ FCPA compliance manual, Sims’ anti-corruption code and any updates on these documents, policies, rules or training from time to time;
“Business Day” means any day other than a public holiday or weekend in the country where the Services are performed;
“Commencement Date” means the date specified as the Commencement Date on the front page of this Agreement;
“Control” means in relation to a person, the power (whether direct or indirect) to direct or cause the direction of its affairs, whether by means of holding shares, possessing voting power, exercising contractual powers or otherwise;
“Confidential Information” means all information in respect of Sims’ or Sims’ Client business including, but not limited to, customer or supplier information, finances, know-how or other matters connected with the Goods or Services;
“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;
“Force Majeure” means any cause preventing either party from performing any or all of its obligations which arises from or is attributable to acts, events, omissions or accidents beyond the reasonable control of the party so prevented including, without limitation, strikes (except strikes by the Sub-Contractors own workforce), lockouts or other industrial disputes (except disputes between the Sub-Contractors at its own workforce) act of God, war, an act of terrorism, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, or storm or default of suppliers or sub-contractors;
“Intellectual Property Rights” means all intellectual and industrial property rights including patents, know-how, registered trademarks, registered designs, utility models, applications for and rights to apply for any of the foregoing, unregistered design rights, unregistered trademarks, rights to prevent passing off for unfair competition and copyright, database rights, topography rights and any other rights in any invention, discovery or process, in each case in the United Kingdom and all other countries in the world and together with all renewals and extensions;
“Laws” means the following laws and regulations which are deemed applicable to the Sub-contract and any other regulations, requirements, stipulations or conditions made by any organisation or association to which the Sub-contractor may be subject to from time to time in the jurisdiction in which it operates. In addition, all relevant European Union, United Kingdom and United States anti-dumping regulations, including but not limited to: Council Regulation (EC) No 1225/2009 and Article IV of the General Agreement on Tariffs and Trade 1994 and the following bribery regulations: the United Kingdom Bribery Act 2010 and the United States Foreign Corrupt Practices Act;
“Goods” means the goods delivered or otherwise made available to the Sub-Contractor upon which the Services are to be performed as detailed in the SOW, including any part or parts thereof, and such other assets as the parties may from time to time agree in writing;
“Packaging Guidelines” means the Sims guidelines for packaging the Goods in preparation for transportation as notified to the Sub-Contractor from time to time;
“Premises” means the authorised premises as specified in this Agreement or an SOW where the Goods will be delivered for the performance of the Services or where the Services will be performed by the Sub-Contractor. If no Premises are specified, then any premises owned or operated by the Sub-Contractor for the Services;
“Price” means the price for the Services as set out in an SOW;
“Region” means each identified region, including any specified countries, under this Agreement or SOW in which the Sub-Contractor has been authorised by Sims to perform the Services;
“Services” means the services (including any part thereof) to be performed by the Sub-Contractor as set out in the SOW;
“Software” means “Sims Portal” or any other proprietary software operated by Sims which may be licensed to the Sub-Contractor as part of the Services;
“SOW” means any order made by Sims in writing (including email) asking the Sub-Contractor to render the Services which confirms, without limitation, the scope of the Services to be provided by the Sub-Contractor, the service levels, the price of the Services and any part thereof and any additional terms that may apply to the Services;
“Third Party” means an Affiliate of Sims;
- Where the context so requires or admits, the masculine will include the feminine and the neuter and the singular will include the plural and vice versa.
- The expression “person” means any individual, firm, company, incorporated association, partnership, government, state, or agency of state, or joint venture.
- The index and headings to the clauses and Schedules of this Agreement will not affect its construction.
- Any laws referred to in this Agreement include their revised versions and any applicable replacement statutes and subordinate legislations.
- In appointing the Sub-Contractor, Sims has relied upon the Sub-Contractor’s representation that it has the resources and the skills, experience and qualifications to enable it to perform the Services to the standards specified in this Agreement.
- The parties agree that, subject to clause 9 (Confidentiality), nothing in this Agreement will prevent Sims from obtaining from any other source the same or similar services to the Services.
- SERVICES (SUB-CONTRACTOR’S OBLIGATIONS)
- The Sub-Contractor and its Affiliates will provide such Services as may be ordered by Sims or a Third Party from time to time and documented in any form of writing (including email) and/or an SOW. Any SOW concluded or any correspondence sent between the parties shall be deemed to be a separate agreement to provide Services but shall in all cases be subject to the terms of this Agreement. In the event of any inconsistency or conflict between the contents of a any correspondence and/or a SOW and this Agreement, the contents of the Agreement shall prevail to the extent of such inconsistency or conflict.
- Prior to agreeing a SOW in accordance with clause 3.1 above, Sims may issue to the Sub-Contractor a request for a quotation, and the Sub-Contractor shall provide all reasonable assistance to Sims in processing such request for quotation and in providing a quotation as soon as reasonable practicable after receipt of a request. For the avoidance of doubt, no such requests for quotation by Sims shall constitute or be deemed to constitute a binding agreement, nor shall it create any other binding commitment to purchase Services from the Sub-Contractor
- The Sub-Contractor will provide the Services:
- in accordance with the terms of, and to at least the standards set out in this Agreement and the relevant SOW;
- using due skill, care and diligence in accordance with good industry practice for performing services of the same nature to the Services during the term of this Agreement and throughout the continuance of any SOW; and
- in accordance with all applicable Laws.
- Sub-Contractor and its Affiliates will obtain and maintain in force all necessary memberships, licences, registrations, approvals, consents or qualifications required by any Laws necessary to perform its obligations under this Agreement, including without limitation, any environmental permits necessary for the proper performance of the Services.
- The Sub-Contractor warrants and represents that in providing the Services it:
- has and will maintain in force all necessary memberships, licences, registrations, approvals, consents or qualifications required by any Laws necessary and has sufficient resources to perform its obligations under this Agreement, including without limitation, any environmental permits necessary for the proper performance of the Service;
- will comply with all reasonable instructions of Sims; and
- will at all times comply with the Laws.
Without prejudice to any other rights or remedies of Sims, the Sub-Contractor shall notify Sims immediately in the event of any incidence of non-compliance with the requirements of this clause 3.5.
- The Sub-Contractor will ensure that the Services are performed substantially by employees, agents and/or authorized sub-contractors (which have been approved by Sims in writing) of the Sub-Contractor possessing suitable skills and experience.
- If the Sub-Contractor needs to make any changes to the Services and/or the provision of the Services, which:
- are necessary to comply with any applicable safety requirements and/or Laws; or
- do not materially affect the nature or quality of the Services,
the Sub-Contractor will notify Sims of such changes in advance of their implementation and obtain Sims’ prior written approval.
- The Sub-Contractor understand and agrees that at the Commencement Date Sims may request Services to be provided on behalf of multiple clients (“Sims Client”) under the terms of existing services agreements (together the “ClientDocuments”).
- The Sub-Contractor acknowledges that it has had a chance to review all obligations applicable to the Services under the Client Documents and understands, accepts and agrees to the relevant obligations imposed upon the Sub-Contractors and any applicable obligations imposed on Sims which the Sub-Contractor will be performing on Sims’ behalf.
- The Sub-Contractor understands that failure to comply with any of the obligations imposed under the Client Documents will be deemed a breach of the Agreement and Sims may terminate this Agreement immediately.
- The Sub-Contractor will indemnify, and keep indemnified, Sims, its Affiliates and any relevant Sims clients from and against all costs, expenses, liabilities, losses, damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which Sims, its Affiliates and any relevant Sims clients incur or suffer due to any breach of this clause.
- Sub-Contractor, its Affiliates, agents and/or authorized sub-contractors consent and agree to provide Sims with all information necessary to complete a background check at Sims’ request.
- Sub-Contractor, its Affiliates, agents, authorized sub-contractors, and employees agree to wear the clothing Sims provides during the performance of all services. If clothing is not provided, Sub-Contractor agrees to follow any applicable dress code required by Sims.
- Sub-Contractor shall not at any time provide the same services to a different entity at prices below those stated in this Agreement or in the SOW. If Sub-Contractor charges a different entity a lower price for similar services, Sub-Contractor must immediately apply the lower price for the services under this Agreement. If Sub-Contractor fails to meet the lower price, Sims, at its option, may terminate this Agreement without liability pursuant to this Agreement’s termination provision.
- SIMS’ OBLIGATIONS
- Sims will comply with all of its material obligations in the SOW in a reasonable and timely manner.
- Without prejudice to the foregoing, Sims will at all times:
- provide the Sub-Contractor with reasonable instructions and directions in relation to the carrying out of the Services;
- respond as soon as reasonably practicable to requests for information or directions which the Sub-Contractor reasonably requests in order to carry out the Services; and
- comply with all applicable Laws.
- DELIVERY OF THE GOODS
- Unless otherwise set out in the SOW, collection of the Goods and transportation thereof to the Premises set out in the SOW shall be arranged or carried out by the Sub-Contractor, and for the purposes of this Agreement, “acceptance” will be deemed to take place when the Goods are made available for collection to the Sub-Contractor or its nominated carrier by Sims’ or its client’s.
- The Sub-Contractor shall be solely responsible for obtaining and shall ensure that it obtains and maintains in force all licences, registrations, approvals, consents or qualifications necessary to enable the Sub-Contractor or its nominated carrier to transport and process the Goods in accordance with applicable Laws and otherwise to provide the Services.
- Sims will not knowingly supply Excluded Goods to the Sub-Contractor. Within a two hours of delivery of the Goods, the Sub-Contractor will carry out an initial visual inspection and any other checks it reasonably requires. If the inspection and/or checks show that the Goods do not comply with the SOW (or include any Excluded Goods), and any specification provided, then the Sub-Contractor will immediately notify Sims and quarantine such Goods. Failure or delay to do so will mean that the Sub-contractor has accepted to provide the Services on any such non-conforming Goods on the agreed price and to the required standards under the Laws.
- If the Sub-Contractor notifies Sims pursuant to clause 5.3, the Sub-Contractor will upon instruction from Sims either dispose of such Goods in line with applicable regulations and Laws or return them to Sims or Sims’ client (as instructed) at Sims’ cost, provided Sims agrees in writing to any such costs.
- PRICE AND PAYMENT
- The Price for the Services will be calculated in accordance with the prices agreed between the parties as set out in the SOW and is exclusive of any value added tax or other applicable sales tax or duty, which shall be payable in addition.
- In addition to the above, the Sub-Contractor accepts that when raising an invoice for the attention of Sims, it include all applicable supplementary costs (including any tax) payable in addition to the Price as a separate line items on any applicable invoice. Failure to include any such additional costs will mean that all relevant additional costs payable are assumed to be included in the Price and Sims will incur no further liabilities for any amounts payable after the issuance of such an invoice.
- The Sub-Contractor and Sims will review the Price from time to time in accordance with the SOW. The Sub-Contractor will not be entitled to increase the Price without Sims’ prior written agreement or withhold the provision of Services if there is a dispute in relation to the applicable Price.
- Invoicing and payment will be as set out in the SOW. Depending on the nature of the Services, the Sub-Contractor may invoice Sims for the Price payable for the Services on an agreed invoicing date as set out in the SOW. Unless otherwise agreed, any payments due will be due in the currency outlined in the applicable SOW, however in all case in only one of the following currencies: United States Dollars, Pound Sterling or Euros.
- If either party becomes liable to pay the other party any sum pursuant to this Agreement, whether a liquidated sum or by way of damages or otherwise, that party will be liable to pay interest on such sum from the due date for payment at the statutory interest applicable from time to time, accruing on a daily basis until payment is made whether before or after any judgment. The parties agree that this clause 6.5 represents a substantial remedy for late payment of any sum payable under this Agreement.
- The Sub-Contractor accepts where a sum is due by Sims to the Sub-Contractor for the provision of Services, such sum will become due ninety (90) days from receipt of the invoice by Sims.
- RISK AND TITLE
- Save to the extent (if any) expressly stated otherwise in a SOW, the Sub-Contractor will bear the risk of loss or damage to the Goods from the moment they are made available for collection by Sims or its client, and during their delivery to and from the Premises and thereafter at all times whilst Goods are in the Sub-Contractor’s or any of its Affiliate’s (including any authorized sub-contractors of the Sub-Contractor) possession or control, regardless of whether they are located in the Premises.
- Title in the Goods shall remain vested in Sims or its client (as the case may be) except where the Goods have been allocated for resale/remarketing by the Sub-Contractor and which has been confirmed by Sims or its client in writing as suitable for resale, in which event title in such Goods shall pass at the point of resale of the Goods or part of the Goods.
- The Sub-Contractor shall ensure that all Goods are clearly marked and kept separate from other products or its own assets. Also, if outlined in an SOW, any printed circuit boards comprised or included within any Goods shall be removed and securely returned to Sims for onward processing. Risk in such items shall remain with the Sub-Contractor until they are safely received by Sims.
- The Sub-Contractor hereby warrants that it will process and provide the Services in line with any applicable regulations and Laws and that it will at all times maintain all necessary licenses, authorisations, permits and any other relevant certifications which may be needed under applicable Laws to provide the Services. In addition it will not sell or dispose of the products in a fashion contrary to its obligations under this Agreement (or any relevant SOW) nor in a fashion contrary to any applicable Laws and that it will at all times perform the Services in a manner acceptable to Sims or as agreed to under this Agreement or a relevant SOW. The Sub-Contractor will indemnify, and keep indemnified, Sims, its Affiliates and any relevant Sims clients from and against all costs, expenses, liabilities, losses, damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which Sims, its Affiliates and any relevant Sims clients incur or suffer due to any breach of this clause.
- SOFTWARE AND INTELLECTUAL PROPERTY RIGHTS
- The provisions of Schedule 2 will apply to this Agreement:
- The Sub-Contractor and its Affiliates may only use the Software as set out in this clause 8 and for no other purpose;
- This licence is for the benefit of the Sub-Contractor only, and unless otherwise agreed in writing by Sims, the Sub-Contractor shall not transfer or sub-licence the use of the Software;
- Sims provides no warranty or representation as to access or availability of the Software;
- Sims may restrict the Sub-Contractor’s access to the Software or revoke this licence at any time without notice to the Sub-Contractor; and
- The Sub-Contractor agrees to comply with any reasonable instruction in relation to the use of the Software provided by Sims from time to time.
- The Sub-Contractor (the “Indemnifying Party”) will indemnify, and keep indemnified, Sims and its Affiliates from and against all costs, expenses, liabilities, injuries, losses, damages, claims, demands, proceedings and judgments which the Sims or its Affiliates incurs or suffers in respect of or as a result of any claim or action that the use of the Intellectual Property Rights provided by, or on behalf of, the Sub-Contractor pursuant to this Agreement infringes any Intellectual Property Rights of any third party.
- The Sub-Contractor guarantees that at the end of this Agreement all data that is be stored on its system as a result or arising out of the usage of the Software or stored as a result of the Services will be deleted immediately. The Sub-Contractor accepts that if data leakage occurs to a third party this will cause irreparable harm to Sims and it will be liable to indemnify Sims for any costs whatsoever in connection with the data leakage.
- Both parties agree:
- not to make or publish any statement relating to, or disclose to any person, firm, company or organisation any Confidential Information (whether written or oral) of the other which it has obtained or received as a result of the discussions leading up to or the entering into, or obtains or receives in performance of, this Agreement;
- not to make or publish any statement relating to, or disclose any Confidential Information of the other in whole or in part to any other person without the other’s written consent, save to those of its employees, agents and sub-contractors involved in the implementation of the Agreement and who have a need to know the same; and
- to use the Confidential Information of the other solely in connection with the performance of the Agreement and not otherwise or for the benefit of any third party.
- Each party will procure that its employees, agents and sub-contractors will maintain the Confidential Information in strict confidence and will not use the same at any time for any purpose except in performance of their duties pursuant to this Agreement.
- Each party will, at its own expense, take all reasonable and appropriate steps to enforce any duty of confidence owed to it by any employee, agent or sub-contractor, insofar as such enforcement appears to be necessary for the protection of the confidentiality of the Confidential Information.
- The provisions of clauses 9.1 to 9.3 above will not apply to the whole or any part of the Confidential Information which is:
- lawfully obtained after the Commencement Date free of any duty of confidentiality otherwise than directly or indirectly from the other party to this Agreement;
- already in the other party’s possession other than as a result of a breach of this clause 9;
- which either of the parties can demonstrate is in the public domain (other than as a result of a breach of this clause 9);
- necessarily disclosed pursuant to a statutory or regulatory obligation but then only to the extent of such required disclosure;
- disclosed to the professional advisers, lawyers, auditors and bankers of each party under terms of confidentiality and those professional advisers, lawyers, auditors and bankers are bound by a duty of confidence; or
- disclosed with prior written consent of the other party.
- Subject to clause 9.4, the provisions of this clause 9 will continue to apply after the termination of this Agreement for 2 years.
- Each party warrants that it has not made or published any statement relating to, or disclosed any Confidential Information prior to the date of this Agreement which would constitute a breach of clause 9.1 if it had occurred after the date of this Agreement.
- MANAGEMENT OF THE SERVICES
- The Sub-Contractor and Sims will manage and review the Services in accordance with the procedures set out in the SOW.
- Without prejudice to the foregoing, The Sub-Contractor and Sims will each nominate a key representative who will be authorised to make decisions relating to this Agreement and who will be responsible for organising and conducting regular meetings throughout the duration of this Agreement.
- The Sub-Contractor shall immediately notify Sims in the event of any of the following circumstances:
- if Sub-Contractor undergoes any change in ownership or control (whether by way of voting or contract rights or otherwise) or senior management; or
- if Sub-Contractor undergoes any material change in its operational status, or in its business, or in its accreditations or credentials with manufacturers; or
- any other circumstances which might reasonably be expected to interfere with the Sub-Contractor’s capacity to fully perform the Services in accordance with this Agreement and the relevant SOW.
- The Sub-Contractor will (and shall procure that each of its authorised sub-contractors and material suppliers will) materially comply with the terms of this Agreement and in addition maintain accurate books and records prepared in the normal course of business, showing (where relevant):
- expenses, taxes, disbursements, time sheets, materials and other charges incurred by the Sub-Contractor in performing any Services on a “time and materials” basis;
- expenses and taxes incurred by the Sub-Contractor in performing any Services on a “fixed fee” basis;
- all relevant, costs, expenses, charges, taxes, and other information and materials incurred in connection with performing other Services and;
- data relating to the Sub-Contractor’s performance against any Service Levels or other standards set out in the relevant SOW.
- The Sub-Contractor will (and will procure that each of its approved sub-contractors and material suppliers, where relevant) allow Sims’ staff and its nominated third parties access to the books, records, systems and procedures maintained by the Sub-Contractor in connection with the provision of the Services for the purpose of reviewing the operation of the Services and/or the verification of any invoice or statement relating to the Services provided to Sims by the Sub-Contractor. The Sub-Contractor will provide reasonable assistance to any authorised persons conducting the review. Sims will use reasonable endeavours to ensure that it (and its nominated third parties) will not cause unreasonable disruption to or interference with the business or operations of the Sub-Contractor in conducting any such audit or review. The provisions of this clause will continue to apply after the termination of this Agreement for 6 years. In addition to Sims’ audit rights set forth in this Agreement, on an annual basis the Sub-Contractor will have an independent third party auditor, which shall be approved by Sims, conduct an audit of the Sub-Contractor’s (and will procure that each of its approved sub-contractors and material suppliers, where relevant) records, facilities and processes, for adherence to Sims’ media sanitization, environmental, health and safety and processes/procedural requirements. The audit shall include all of the Sub-Contractor’s locations, partners and subcontractors providing Services for or on behalf of the Sub-Contractor under the Agreement. All fees and expenses associated with the audit will be paid by the Sub-Contractor.
- CHANGES TO THE SERVICES
- At any time during the continuance in force of this Agreement Sims may by notice request and/or recommend variations (“Change Notice”) to any part or parts of the Services.
- Subject to clause 11.5, the Sub-Contractor will after receipt of a Change Notice submit to Sims a full written quotation for such variation specifying the increase or decrease (if any) which will be required to the Price and the changes (if any) which will be required to this Agreement to implement the proposed change.
- Except as set out in clause 3.6, no variations to the Services will take effect unless and until they are agreed in writing between the parties and The Sub-Contractor will, unless otherwise agreed in writing, continue to perform the Services and be paid as if such variation had not been recommended or requested.
- Notwithstanding the above, if the Sub-Contractor is unable to comply with any request for the variation of the Services, it will notify Sims immediately and in writing within 5 working days after receiving a request. Sims will have the right to purchase the varied Services elsewhere as is necessary to cover its requirements and terminate this Agreement.
- FORCE MAJEURE
- Neither party to this Agreement will be in breach of this Agreement or otherwise liable to the other party in any manner whatsoever for any failure or delay in performing its obligations under this Agreement due to Force Majeure.
- If a party’s performance of its obligations under this Agreement is affected by Force Majeure:
- it will give written notice to the other party (the “unaffected Party”), specifying the nature and extent of the Force Majeure, within 5 Business Days of becoming aware of the Force Majeure and will at all times use all reasonable endeavours to mitigate the severity of the Force Majeure;
- subject to the provisions of clause 12.3, whether the date for performance of such obligation will be deemed suspended but only for a period equal to the delay caused by such event; and
- that it will not be entitled to payment from the other party in respect of extra costs and expenses incurred by virtue of the Force Majeure.
- If the Force Majeure in question continues for more than 30 days, Sims may give notice in writing to the Sub-Contractor to terminate this Agreement. The notice to terminate must specify the termination date, which must not be less than 10 Business Days after the date on which the notice is given, and once such notice has been validly given, this Agreement will terminate on that date.
- LIMITATION OF LIABILITY
- Neither party excludes its liability (if any) to the other party:
- for personal injury or death resulting from its negligence;
- for breach of consumer protection legislation, regulations and codes of practice;
- for any matter which it would be illegal for a party to exclude or to attempt to exclude its liability for; or
- for fraud or fraudulent misrepresentation.
- SUBJECT TO CLAUSES 13.1 AND 13.3, SIMS’ AND ITS AFFILIATES’ AGGREGATE LIABILITY UNDER OR IN RELATION TO THIS AGREEMENT (INCLUDING WITHOUT LIMITATION UNDER ANY SOW) (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, RESTITUTION UNDER ANY INDEMNITY OR OTHERWISE) FOR ANY INJURY, DEATH, DAMAGE OR LOSS HOWSOEVER CAUSED WILL BE LIMITED TO THE LOWER OF: €10,000 (TEN THOUSAND EUROS); OR THE PRICE FOR THE SERVICES RECEIVED BY THE SUB-CONTRACTOR DURING THE COURSE OF THIS AGREEMENT.
- SUBJECT TO CLAUSE 13.1, SIMS (INCLUDING ITS AFFILIATES) WILL NOT BE LIABLE UNDER THIS AGREEMENT 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.
- Where the Indemnifying Party” is liable to indemnify the Innocent Party under this Agreement, such indemnity will apply provided that:
- the Innocent Party promptly gives notice of any claim to the Indemnifying Party;
- the Innocent Party provides to the Indemnifying Party on request such information and assistance in relation to such claim as the Indemnifying Party may reasonably require, subject to the Indemnifying Party indemnifying the innocent party against all costs reasonably incurred by it in the provision of such information or assistance;
- the Innocent Party does not make any settlement, compromise or prejudicial admission in relation to such claim without the prior consent of the Indemnifying party (such consent not to be unreasonably withheld or delayed); and
- the Innocent Party takes all reasonable steps to mitigate its loss.
- During the term of this Agreement The Sub-Contractor shall (in addition to any obligatory insurances which may be required under the Client Documents and the applicable Laws of the jurisdictions in which the Sub-Contractor operates) at its own cost maintain the insurances specified in this clause (and any other such covers, as Sims advises the Sub-Contractor of from time to time) for normal risks covered by such policies to cover its liabilities under this Agreement: (a) public liability insurance in the sum of $2,000,000 per claim and $5,000,000 in aggregate (b) professional indemnity in the sum of $2,000,000 per claim and $2,000,000 in aggregate (c) Automobile Liability $5,000,000 combined single limit per accident (d) employer liability insurance in the sum of $2,000,000 per claim and $5,000,000 in aggregate (e) Environmental Insurance (Contractor’s Pollution Liability) with limits of at least $5,000,000 each occurrence, claim, or wrongful act and $10,000,000 aggregate (f) Pollution Legal Liability with limits of at least $3,000,000 each occurrence, claim, or wrongful act and $6,000,000 aggregate:
- All preceding policies must (where legally possible) include Sims, its Affiliates, Sims Clients, and their directors, officers, and employees as Additional Named Insured’s. Sub-Contractor shall provide a copy of the Additional Insured endorsement to Sims. If required within the scope of Sub-Contractor’s work to be performed, the insurance required herein cannot exclude coverage for bodily injury, property damage, pollution or environmental harm resulting from or arising out of the work to be performed, asbestos, lead or silica-related claims, claims arising out of microbial matter or bacteria, testing, monitoring, measuring operations or laboratory analyses, or liability arising out of the operation of a treatment facility. The policy must contain a separation of insured’s clause.
- Sims may terminate this Agreement by giving to the Sub-Contractor not less than one months’ written notice.
- Sub-Contractor may terminate this Agreement by giving to Sims not less than six months’ written notice to expire on the expiry of the Initial Period or any date thereafter
- Either party may by written notice served on the other terminate this Agreement immediately if the other party:
- is in breach of any material term of this Agreement and, where the breach is capable of remedy, the other party fails to remedy such breach within 30 Business Days’ service of a written notice from the party not in breach, specifying the breach and requiring it to be remedied;
- becomes bankrupt, insolvent, summons a meeting of or enters into any arrangement with its creditors, makes a proposal for or becomes subject to any voluntary arrangement, is unable to pay its debts, has a receiver, manager or administrative receiver appointed over any of its assets, undertakings or income, has passed a resolution for its winding up or has a petition presented for winding up, has a provisional liquidator appointed or has an administrator appointed in respect of it;
- has any distraint, execution or other process levied or enforced on any of its property or ceases or threatens to cease to trade; or
the equivalent of any of the above occurs to the other party under the jurisdiction to which that party is subject.
- Sims may by written notice served on the Sub-Contractor terminate this Agreement immediately if the Sub-Contractor has a material change in its management, or in its board composition or in its ownership or control. For the purposes of this clause 14, “control” shall have the meaning attributed to it in Section 840 of the Income and Corporation Taxes Act 1988.
- The rights to terminate this Agreement given by this clause will not prejudice any other right or remedy of either party in respect of the breach concerned (if any) or any other breach.
- CONSEQUENCES OF TERMINATION
- Upon termination of this Agreement howsoever arising:
- the Sub-Contractor may invoice Sims for any Services performed under this Agreement up to the date of termination and Sims will pay such invoice in accordance with this Agreement;
- each party will promptly return to the other party all property, materials and documentation of the other and/or that incorporates the other party’s Intellectual Property Rights and/or Confidential Information; and
- the Sub-Contractor and Sims will agree what should happen to any unprocessed Goods in the Sub-Contractor’s possession at the date of termination. Where the parties are unable to reach such agreement, the Sub-Contractor may return such Goods to Sims or Sims’ client at a cost to be agreed between the parties.
- Termination of this Agreement for any reason is without prejudice to any rights or obligations which have accrued prior to termination, and any provisions which are expressly or by implication intended to survive such termination.
- NATURE OF AGREEMENT
- Entire Agreement
This Agreement contains all of the terms which the parties have agreed in relation to the transactions provided for by this Agreement to the exclusion of all other terms and conditions (including any terms or conditions which the Sub-Contractor 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 Agreement). Neither party has been induced to enter into this Agreement by a statement or promise which it does not contain. This will not exclude any liability which a party would otherwise have to the other party in respect of any statement made fraudulently by that party prior to the date of this Agreement.
- Assignment and Subcontracting
- Sims may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under this Agreement.
- This Agreement is personal to the Sub-Contractor and it shall not assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under this Agreement without Sims’ express written consent, which Sims may in its absolute discretion withhold.
- Notwithstanding any sub-contracting any part of the Sub-Contractor’ rights or obligations under this Agreement, the Sub-Contractor shall remain liable for such obligations under this Agreement and will be responsible for any failure by any sub-contractor to observe the conditions of this Agreement.
If any condition or part of this Agreement is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable then that provision will, to the extent required, be severed from this Agreement and will be ineffective without, as far as is possible, modifying any other provision or part of this Agreement and this will not affect any other provisions of this Agreement which will remain in full force and effect.
- Any failure or delay by either party in exercising any right, power or remedy under this Agreement will not in any circumstances impair such right, power or remedy nor operate as a waiver of it. The single or partial exercise by a party of any right, power or remedy under this Agreement will not in any circumstances preclude any other or further exercise of it, or the exercise of any right, power or remedy.
- Subject as expressly provided in this Agreement, the rights, powers and remedies provided in this Agreement are cumulative and not exclusive of any rights, powers and remedies provided by law.
- Any waiver of a breach of, or default under, any of the terms of this Agreement will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of this Agreement.
- Data Protection
Each party will be responsible for compliance with all applicable Laws concerning the processing and security of personal data.
No variation of this Agreement will be valid unless in writing signed by a director or duly authorised representative of each of the parties.
- Relationship of the Parties
- Nothing in this Agreement will create, or be deemed to create, a partnership or joint venture between the parties.
- In the performance of this Agreement, the parties hereby acknowledge and agree that the Sub-Contractor is an independent contractor. While Sub-Contractor, its Affiliates, agents, and/or employees may be subject to certain obligations set forth by Sims, nothing in this Agreement creates an employment relationship between Sims and Sub-Contractor, its Affiliates, agents, and/or employees. Sub-Contractor shall inform its Affiliates, agents, and/or employees that they are not Sims’ employees and that Sims will not provide any employee benefits, such as insurance, pension, vacation pay, or sick pay.
- Nothing in this agreement grants Sub-Contractor authority to act as Sims’ agent. Sub-Contractor acknowledges that it does not have the ability to bind or obligate Sims, both in contractual matters and in terms of Sub-Contractors’ tortious conduct.
- In the event litigation is initiated against Sims and a judicial opinion is rendered concluding that Sub-Contractor was acting as Sims’ employee or agent, Sub-Contractor will indemnify, and keep indemnified, Sims, its Affiliates and any relevant Sims clients from and against all costs, expenses, liabilities, losses, damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which Sims, its Affiliates and any relevant Sims clients incur or suffer.
- Anti-Corruption Policy compliance
- The Sub-Contractor hereby confirms and agrees that it has been provided and has understood the contents of Sims’ Anti-Corruption Policy and understand its obligations and procedures thereunder.
- In addition to any other obligations under this Agreement or an applicable SOW the Sub-Contractor agrees to comply with the Anti-Corruption Policy at all times.
- The Sub-Contractor will indemnify, and keep indemnified, Sims, its Affiliates and any relevant Sims clients from and against all costs, expenses, liabilities, losses, damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which Sims, its Affiliates and any relevant Sims clients incur or suffer due to any breach of this Agreement.
- Employee & TUPE
- For the purposes of this clause “TUPE” means the Transfer of Undertakings (Protection of Employment) Regulation and any subsequent amendments to such regulations or subordinate legislations enacted by member states of the European Union.
- The Sub-Contractor shall indemnify Sims and/or any new contractor engaged by Sims to provide the Services to Sims in succession to the Sub-Contractor against all actions, claims, proceedings, demands, awards, costs, fines, orders, expenses and liabilities (whether arising at common law, under statute or otherwise and including legal and other professional fees and expenses) incurred in connection with any claims by or in relation to any personnel involved in the provision of the Services or their trade unions or other representatives arising out of all or any of the following:
- termination or expiry of this Agreement or any Services provided under it;
- entering into, operating and/or implementing the terms of this Agreement;
- transfer of such personnel under TUPE following cessation of the Agreement or any Services under it and their subsequent dismissal;
- any failure or alleged failure to comply with TUPE during the term or as may otherwise be required in connection with cessation of the Agreement or any Services under it;
- The Contractor warrants that the information it supplies to Sims (or any new contractor of the Services to Sims) in accordance with its obligations under TUPE Regulation 11 on the cessation (including part thereof) and/or termination of this Agreement shall be true and accurate.
- Where the TUPE regulations are not applicable in the jurisdiction in which the Services are being provided by the Sub-Contractor, the Sub-Contractor agrees that it will abide to such standards as are outlined in this clause in relation to any Laws which have the same or similar effect as the TUPE regulations in the jurisdiction in which the Services are provided.
- Non-solicitation of Sims clients
- In order to protect the Sims Confidential Information to which the Sub-Contractor has access during the course of this Agreement the Sub-Contractor covenants with the Contractor that it shall not:
- for the duration of this Agreement and for 12 months after its termination or expiry, solicit or endeavour to entice away from the Contractor the business or custom of any party which is a client of Sims, with a view to providing goods or services to that client in competition with any business which is the same as or similar to the business the subject of this Agreement; and
- at any time after termination or expiry of this Agreement, represent themselves as connected with the Contractor in any capacity.
- The restrictions imposed in this clause 16.8 apply to the Sub-Contractor acting:
- directly or indirectly; and
- on their own behalf or on behalf of, or in conjunction with, any firm, company or person.
- Any notice, demand or communication in connection with this Agreement will be in writing and may be delivered by hand, first class post, Special Delivery post or Airmail (but not by email or facsimile), addressed to the recipient at its registered office or such other address as the recipient has notified to the sender from time to time in accordance with this clause 17.
- RIGHTS OF THIRD PARTIES
The parties to this Agreement do not intend that any of its terms will be enforceable by any person not a party to it whether by virtue of statute or otherwise howsoever arising.
- DISPUTE RESOLUTION
- In the event of any dispute or difference arising between the parties in respect of any matter connected with this Agreement (the “Dispute”), Sims and the Sub-Contractor will work together in good faith to try to resolve the Dispute.
- In order to resolve a Dispute, the key representatives of the parties will:
- meet as often as the parties reasonably deem necessary to gather and exchange all information regarding the Dispute and which is relevant to its resolution; and
- discuss the Dispute and negotiate in good faith in an effort to resolve the Dispute without the necessity of any formal proceedings.
- If the key representatives of the parties are unable to resolve the Dispute within 30 Business Days, either party may refer the Dispute for consideration by the senior management (or equivalent) of Sims and the Sub-Contractor who will act in good faith to try to resolve the Dispute.
- Neither party will commence any court proceedings in relation to any Dispute arising out of this Agreement until after both parties have attempted to settle any Dispute using the procedures referred to in this clause 19 and clause 20.
- Nothing in this clause 19 or clause 20 will prevent any party from seeking immediate injunctive relief to protect any Intellectual Property Rights or Confidential Information.
- If the parties are unable to resolve a Dispute in accordance with clause 19, the parties will attempt to settle the Dispute by mediation in accordance with the Model Mediation Procedures published by the Centre for Effective Dispute Resolution (“CEDR”).
- To initiate a mediation, a party must give notice in writing (the “Mediation Notice”) to the other party to the Dispute in accordance with clause 17. The parties will seek to agree the appointment of a mediator but, failing agreement within 10 Business Days of the service of the Mediation Notice, either party may ask CEDR to appoint a mediator.
- If either party refuses at any time to participate in the mediation procedure or if the Dispute is not resolved within 60 Business Days of the service of the Mediation Notice, then either party may commence proceedings in accordance with clause 21.
- LAW AND JURISDICTION
- The formation, existence, construction, performance, validity and all aspects whatsoever of this Agreement or of any term of this Agreement will be governed by English law where the Sub-Contractor is providing Services in any jurisdiction outside of the Americas.
- Where the Sub-Contractor is providing Services within any jurisdiction in the Americas and the Sims contracting entity is formed and regulated under the laws of one of the constituent States of the United States of America this Agreement will be governed by the laws of the State of Illinois, without regard to conflict-of-laws principles.
- Subject to clause 19 and 20 and where the Agreement is governed under English law in accordance with clause 21.1 above, the parties agree to submit to the exclusive jurisdiction of the English courts to settle any disputes which may arise out of or in connection with this Agreement.
- Subject to clause 19 and 20 and where the Agreement is governed under the laws of the State of Illinois in accordance with clause 21.2 above, the parties agree to submit to the exclusive jurisdiction of the courts, located in Cook County of the State of Illinois to settle any disputes which may arise out of or in connection with this Agreement.