SCHEDULE 1 – TERMS & CONDITIONS
1.1 In this Agreement, the following expressions will have the following meanings unless the context otherwise requires:
“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 this Agreement for the provision of Services;
“Acceptance” means Products accepted by Sims for the Services in accordance with the procedures set out in this Agreement or any agreed form SOW. If no procedure is set-out, Acceptance will constitute a written confirmation by Sims to the client that Products are in conformance with the Specification and accepted for the Services. In any case, Acceptance by Sims will, occur sixty days’ after Delivery of the Products at the Premises;
“Business Day” means any day other than a Saturday or Sunday or a bank or public holiday in the country where the Services are performed;
“Commencement Date” means the date specified as the Commencement Date at the foot of this Agreement;
“Confidential Information” means all information in respect of a party’s business including, but not limited to, customer or supplier information, finances, know-how or other matters connected with the Products or Services;
“Excluded Products” means products other than the Products, including without limitation, those products specified or defined as ‘Excluded Products’ or any goods which Sims advises the client of from time to time;
“Initial Term” means a period of one year from the commencement date.
“Laws” means all laws and regulations applicable to a party and any other regulations, requirements, stipulations or conditions made by any organisation or association to which such party may be subject from time to time;
“Packaging Guidelines” means Sims guidelines for packaging the Products in preparation for transportation as notified to the Client from time to time;
“Participation Agreement” means an agreement entered into by the Client and its Affiliates with Sims’s Affiliates for a specified region, incorporating the terms of this Agreement. An agreed form of which is attached as Schedule 2 to this Agreement;
“Premises” means the premises specified in the quotation to where the Products will be delivered or where the Services will be performed;
“Price” means the price for the Services set out inthe quotation.
“Products” means the goods delivered to Sims upon which the Services are to be performed as detailed in the quotation, including any part or parts thereof, and such other assets as the parties may from time to time agree in writing, but at all times excluding the Excluded Products;
“Services” means the services (including any part thereof) to be performed by Sims as set out in the quotation;
“Software” means “Sims Portal” or other proprietary software operated by Sims which may be licensed to Client as part of the Services;
“Specification” means the technical specifications and descriptions for the Products and all information which explains the structure, design and material composition of the Products, including without limitation, details of any hazardous substances or any other potential hazard;
“Terms and Conditions” means these terms and conditions set out in this Schedule 1;
“Year” means a period of 12 months commencing on the Commencement Date or on any anniversary thereof.
1.2 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.
1.3 The expression “person” means any individual, firm, company, incorporated association, partnership, government, state, or agency of state, or joint venture.
1.4 The headings to the clauses and Schedules of this Agreement will not affect its construction.
2.1 Sims will provide the Services as may be ordered by the Client from time to time in accordance with the quotation.
2.2 Sims will use reasonable endeavours to perform and provide the Services to the standards described in the quotation and using reasonable skill, care and diligence and in accordance with all applicable Laws.
2.3 If Sims needs to make any changes to the Services and/or the provision of the Services, which (a) are necessary to comply with any applicable safety requirements and/or Laws, or (b) do not materially affect the nature or quality of the Services, Sims will notify the Client of such changes in advance of their implementation and, where any such changes would have a material effect on the Services, obtain the Client’s prior approval.
2.4 If Sims is prevented from performing, or hindered in the performance of, the Services due to any act or omission of the Client or its employees, agents or contractors, including without limitation, any breach of the Client’s obligations under this Agreement, Sims will promptly notify the Client of such circumstances and Sims will not be liable for any failure to perform, or any delay in the performance of, the Services.
3 CLIENT’S OBLIGATIONS
3.1 The Client will comply with all of its obligations in the quotation in a reasonable and timely manner.
3.2 Without prejudice to the foregoing, the Client will at all times:
3.2.1 provide Sims with timely and reasonable instructions and directions in relation to the carrying out of the Services;
3.2.2 respond promptly to requests for information or directions which Sims requests in order to carry out the Services;
3.2.3 notify and consult with Sims immediately in the event that the Client becomes aware of any problems or potential problems arising in relation to the performance of the Services;
3.2.4 not, at any time, obstruct the provision by Sims of the Services or do any act which would jeopardise or increase the cost to Sims of the provision of the Services;
3.2.5 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
3.2.6 comply with all applicable Laws.
3.3 The Client will not supply Excluded Products to Sims without Sims’ prior written approval and agreement on the services required and the price to be charged.
3.4 Without prejudice to clause 4.2, before delivery of the Products takes place the Client will notify Sims in writing of any hazardous substances or any other potential hazard contained in or relating to the Products and thereafter information concerning any changes in such substances or hazard that it is (or ought reasonably to be) aware of.
3.5 Sims may at any time request a Specification for the Products if the Client has notified Sims of a hazard or substance in accordance with clause 3.4 or where Sims believes that the Products contain hazardous substances or other potential hazard. If the Client is unable to produce a Specification for the Products on request, then Sims may at the Client’s sole cost (such cost to be agreed with the Client) carry out testing of the Products on the Client’s behalf to produce a Specification. Sims shall not be in breach of its obligations under this Agreement and may reject the Products if the Client does not either supply a Specification or allow Sims to produce a Specification for the Product in accordance with this clause 3.5.
3.6 Where an Affiliate of Sims is rendering services on behalf of the Client and/or any of its Affiliates in a specified jurisdiction as per an SOW and the payment terms as outlined in an SOW dictate that the Price is to be paid by the Client (including by its Affiliates) directly to the relevant Sims Affiliates, the parties agree that prior to commencement of such pricing structure the relevant Sims Affiliates will enter into a Participation Agreement with the Client and/or any of its relevant Affiliates) to establish a direct contractual relationship with it
4. DELIVERY OF THE PRODUCTS
4.1 Unless otherwise set out in the quotation, the Client will deliver the Products to the Premises as set out in the quotation. Delivery will take place when the Products are off-loaded at the Premises (“Delivery”). If requested to do so by the Client, Sims will arrange collection on the Client’s behalf at the Client’s cost, and will invoice the Client for the cost of such collection.
4.2 In the event that Sims arranges collection and transportation at the Client’s request (as envisaged under clause 4.1) the Client shall specify accurately the content of each consignment in such detail as Sims or its nominated carrier shall reasonably require in order to arrange appropriate transportation. In the absence of such information Sims shall be entitled to refuse or delay transportation until such information has been obtained or to transport Products by such means as it deems to be reasonable in the circumstances, and the Client shall be fully accountable for any additional transportation and ancillary costs incurred by Sims resulting from the failure or delay by the Client in providing such information. If Sims does not arrange for collection or transportation the Client shall be solely responsible for obtaining all licences, registrations, approvals, consents or qualifications necessary to enable Sims or its nominated carrier to transport the Products in accordance with applicable Laws.
4.3 Unless otherwise stated in the quotation, the Client will be responsible for preparing the Products for transportation and in doing so shall comply with the Packaging Guidelines and all applicable Laws and recommendations in relation to safe and effective packaging, and for ensuring that no consignment of Products contains Excluded Products.
4.4 Without prejudice to this clause 4, the Products are subject to Acceptance as set out in the quotation. Delivery of the Products will not amount to Acceptance. For the avoidance of doubt Sims shall be under no obligation to Accept, and the Client shall not provide or make available to Sims any products which are themselves or are packaged or presented in any way which is hazardous or capable of causing harm to human health or to the environment.
4.5 Within a reasonable time of delivery of the Products, Sims will carry out an initial visual inspection and any other checks it requires. If the inspection and/or checks show that the Products comply with the quotation, then Sims will Accept the delivered Products.
4.6 Where the Products delivered to Sims do not comply with the quotation or the Specification in whole or in part, or contain Excluded Products or are, in Sims’ reasonable opinion, not packaged safely, Sims will be under no obligation to Accept such Products or to attempt to separate the Products in that consignment.
4.7 Where the Products delivered to Sims do not comply with the quotation or the Specification but are capable of being processed by Sims, Sims will have the right, in its discretion, to Accept the Products for processing and to charge the Client a reasonable price for such processing.
4.8 If Sims does not Accept the Products pursuant to clause 4.5, Sims will upon instruction from the Client either dispose of such Products in line with applicable regulations or return them to the Client at the Client’s cost.
4.9 Unless otherwise agreed, the weight of any consignment of Products as recorded by Sims upon Acceptance of the Products at the Premises will be conclusive evidence of the weight of Products received by Sims and will form the basis of the Price calculation.
4.10 For the avoidance of doubt, a signature of receipt of a consignment by a representative of Sims on a carrier’s delivery note will not be evidence of the contents or weight of the consignment received at the Premises.
5. PRICE AND PAYMENT
5.1 The Price for the Services will be the prices agreed between the parties as set out in the quotation and is exclusive of any value added tax or other applicable sales tax or duty.
5.2 Sims and the Client will review the Price from time to time in accordance with the quotation. Sims will be entitled to increase the Price following any agreed changes in the quotation, and by agreement with the Client at any time after the expiry of the Initial Period.
5.3 Invoicing and payment will be as set out in the quotation. Depending on the nature of the Services, Sims may invoice the Client for the Price payable for the Services on an agreed invoicing date as set out in the quotation. Payment is due in the currency set out in the quotation.
5.4 Payment will not be deemed to have been received until a party has received cleared funds.
5.5 All sums payable under this Agreement will become due immediately upon termination of this Agreement.
5.6 Unless otherwise agreed by the parties in writing, all payments to be made under this Agreement will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim.
5.7 If the Client fails to pay on the due date any amount which is payable to Sims under this Agreement then, (a) that amount will bear interest from the due date until payment is made in full, both before and after any judgment, at the current statutory rate from time to time in the territory where Sims is based; and (b) Sims will be entitled to suspend performance of the Services, or any part of the Services, until the outstanding amount has been received from the Client in cleared funds.
6. RISK AND TITLE
6.1 Save where transportation is provided by Sims, the Client will bear the risk of loss or damage to the Products during their delivery to and from the Premises.
6.2 Sims will bear the risk of loss or damage to the Products whilst the Products are located in the Premises. Sims will have no liability for the risk of loss or damage to Products in the Client’s possession or under its control.
6.3 Except to the extent products are simply to be assessed and returned to the Client in accordance with the quotation, in which case title shall not pass to Sims, title in the Products will transfer to Sims:
6.3.1 on unloading and after express Acceptance of the Products at the Premises by Sims, where the Client allocates the Products for destructive recycling;
6.3.2 at the point of resale of the Products or part of the Products where the Products have been allocated for resale/remarketing by the Client which has been confirmed by Sims (acting reasonably) as suitable for resale; or
6.3.3 where Sims is required to sort and/or assess the Products to determine if they are suitable for resale/remarketing or destructive recycling: (a) at the point of resale of the Products or part of the Products if Sims (acting reasonably) determines the Products are suitable for resale/remarketing; or (b) at the point Sims allocates the Products for destructive recycling, if Sims (acting reasonably) determines the Products are only suitable for destructive recycling.
6.4 The Client hereby warrants that it has good and complete title to the Products and that no third party has any interest in the Products.
6.5 The Client will indemnify, and keep indemnified, Sims from and against all costs, expenses, liabilities, losses, damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which Sims incurs or suffers due to any breach of clause 6.4
7.1 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, nor 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.
7.2 Each party will 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, and will ensure 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.
7.3 The provisions of clause 7.1 and 7.2 will not apply to the whole or any part of the Confidential Information which is (a) lawfully obtained after the Commencement Date free of any duty of confidentiality otherwise than directly or indirectly from the other party to this Agreement; (b) already in the other party’s possession other than as a result of a breach of this clause 7; (c) demonstrably in the public domain (other than as a result of a breach of this clause 7); (d) necessarily disclosed pursuant to a statutory or regulatory obligation but then only to the extent of such required disclosure; (e) disclosed to the professional advisers, lawyers, auditors and bankers of each party under terms of confidentiality; or (f) disclosed with prior written consent of the other party.
7.4 Subject to clause 7.3, the provisions of this clause 7 will continue to apply after the termination of this Agreement for 2 years.
8. FORCE MAJEURE
8.1 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 an event which is beyond that party’s reasonable control, including (without limitation) industrial disputes, acts of God, fire, flood, storm, war, terrorism, civil commotion, malicious damage, compliance with Laws, accident, breakdown of plant or machinery, or default of suppliers or contractors ( a “Force Majeure Event”).
8.2 If the Force Majeure Event in question continues for more than 3 months, either party may terminate this Agreement by giving written notice. 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 termination date.
9. LIMITATION OF LIABILITY
9.1 Neither party excludes its liability (if any) to the other party for any matter which it would be unlawful for a party to exclude or to attempt to exclude its liability.
9.2 Subject to clauses 9.1 and 9.3, Sims’ (including its Affiliates and subcontractors) maximum aggregate liability under this Agreement whatsoever (including without limitation under any quotation) (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 the Price paid by Client for the Services rendered by Sims during the course of this Agreement.
9.3 Subject to clause 9.1, neither party will be liable under this Agreement whatsoever (including without limitation under any quotation) (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.
10. NATURE OF AGREEMENT
10.1 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 the Client’s standard conditions. 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.
10.2 Sims may assign, delegate, license, hold on trust or sub-contract all or any part of its rights or obligations under this Agreement. However, this Agreement is personal to the Client who may not assign, delegate, license, hold on trust or sub-contract all or any of its rights or obligations under this Agreement without Sims’ prior written consent, such consent not to be unreasonably withheld or delayed.
10.3 Notwithstanding any sub-contracting of Sims’ rights or obligations under this Agreement, Sims shall remain liable for such obligations under this Agreement and will be responsible for any failure by the sub-contractor to observe the conditions of this Agreement.
10.4 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.
10.5 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.
10.6 Data Protection. Each party will be responsible for compliance with all applicable Laws concerning the processing and security of personal data.
10.7 No variation of this Agreement will be valid unless in writing signed by a director or duly authorised representative of each of the parties.
10.8 Either Party may terminate this Agreement by giving no less than three months’ notice to the other Party.
11. 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.
12. DISPUTE RESOLUTION, LAW AND JURISDICTION
12.1 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 Client will work together in good faith to try to resolve the Dispute.
12.2 The formation, existence, construction, performance, validity and all aspects whatsoever of this Agreement or of any term of this Agreement and any non-contractual obligations arising out of or in connection with it will be governed by the laws of the State of Illinois, and, the parties agree to submit to the exclusive jurisdiction of the Cook County or DuPage courts to settle any disputes which may arise out of or in connection with this Agreement and any non-contractual obligations arising out of or in connection with it.