Terms and Conditions
GENERAL TERMS AND CONDITIONS FOR THE PURCHASE OF SERVICES
- DEFINITIONS AND INTERPRETATION
“Agent” means, in respect of each party, any employee, officer, agent, contractor, supplier or sub-contractor of that party, but in respect of Sims, excludes the Service Provider.
“Agreement” means the Services Agreement or any agreement or other document incorporating these Terms and Conditions including any Service Orders entered thereunder.
“Applicable Law” means all applicable laws, Acts of Parliament, regulations, ordinances, local laws, by-laws, awards, orders, judgements, licences, rules, permits, agreements, instruments and requirements and all applicable codes, standards, guidelines, practices and policies.
“Business Day” means:
(a) as relevant, a day other than a Saturday, Sunday or gazetted public holiday in the state or territory the Services are provided; and
(b) in all other cases, a day other than a Saturday, Sunday or gazetted public holiday in Sydney, New South Wales.
“Change Order” has the meaning set forth in clause 2.3(b).
“Commencement Date” means the Commencement Date specified in the Agreement.
“Confidential Information” means the terms of this Agreement and any other confidential information relating to the business, finances, strategy, methods, process, and products or other affairs of the disclosing party which is disclosed to, learnt by or accessed by the other party (“Recipient“) in connection with this Agreement, whether before or after the Commencement Date, whether orally, electronically, in writing or otherwise, but excludes information which:
(a) is in or becomes part of the public domain other than through a breach of this Agreement or an obligation of confidence owed to the disclosing party;
(b) the Recipient obtains without an obligation of confidentiality from a source other than the disclosing party which source is entitled to disclose it; or
(c) is developed independently by the Recipient, provided the Recipient can demonstrate that such development was accomplished by or on behalf of the Recipient without the use of or reference to the disclosing party’s Confidential Information.
“Data Breach Investigation” has the meaning set forth in clause 16.3(c).
“Data Incident” means an Eligible Data Breach that has, or is reasonably suspected to have, occurred in respect of any Personal Information the Supplier has collected, held, used or disclosed in the course of or relating to this agreement.
“Deliverable” means any report, software, system or other thing created or developed by the Service Provider to meet the requirements of Sims under this Agreement.
“Developed IP” means any and all intellectual property created, discovered or coming into existence in connection with the provision of the Services under this Agreement.
“Eligible Data Breach” means an eligible data breach as that term is defined in the Privacy Amendment (Notifiable Data Breaches) Act 2016 (Cth), occurring on or after 22 February 2018.
“Equipment” means any plant, equipment, tools, appliances or other items used by the Service Provider to provide the Services.
“Force Majeure Event” means any of the following events or circumstances which are not within the reasonable control of the party affected by it (“Affected Party”):
(a) acts of God, including storms or cyclones, action of the elements, pandemics, epidemics, landslides, earthquakes, floods, road closures due to washouts or impassability and natural disaster;
(b) strikes, stoppages, restraints of labour, or other industrial disturbances, other than those only affecting the personnel of the Affected Party;
(c) acts of the public enemy, including wars which are either declared or undeclared, blockades and insurrections, including embargoes or restrictions on transport facilities;
(d) riots, malicious damage, sabotage and civil disturbance, including acts of terrorism; and
(e) any production or operational shutdown or interruption of the Service Provider’s facilities which is validly required or directed by the Commonwealth or State government or any Governmental Agency or judicial law which is not due to the act or default of the Affected Party,
and which the Affected Party is not reasonably able to prevent or overcome, or the effects of which the Affected Party is not reasonably able to predict and take measures to avoid, by the exercise of reasonable technical and commercial diligence and prudence.
“Government Agency” means any government or any governmental, semi-governmental or administrative department, entity, agency, authority, commission, corporation or body (including those constituted or formed under any statute) where the department, entity, agency, authority, commission, corporation or body is subject to the control or direction of any government in a country where the relevant party to this agreement operates.
“GST Law” has the same meaning as in the A New Tax System (Goods and Services Tax) Act 1999 (Cth).
“Initial Term” means the Initial Term specified in the Services Agreement.
“Insolvency Event” means being an insolvent under administration or insolvent or having a controller appointed (each as defined in the Corporations Act 2001 (Cth)), or being in receivership, in receivership and management, in liquidation or provisional liquidation, under administration, wound up, subject to any arrangement, assignment or composition, protected from creditors under any statute, dissolved (other than to carry out a reconstruction while solvent) or being otherwise unable to pay debts when they fall due or having something with the same or similar effect happen under the laws of any jurisdiction.
“Intellectual Property Rights” means copyright and neighbouring rights (including moral rights), all rights in relation to inventions (including patents), registered and unregistered trade marks, business names, domain names, registered and unregistered designs, circuit layouts, confidential information, and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.
“Invoice” means an invoice issued under clause 6 or a tax invoice issued under the GST Law, as applicable based on context.
“Key Personnel” means any Service Provider Personnel who is identified as being key in a Service Order.
“Personal Information” means personal information as the term is defined in the Privacy Act.
“Personnel” of a party means officers, employees, agents and contractors of that party.
“Pre-Existing IP” means any material which one party provides or makes available to the other party under or in connection with this Agreement which is not Developed IP.
“Privacy Act” means the Privacy Act 1988 (Cth) as amended from time to time.
“Project Milestones” means _______
“Related Bodies Corporate” means a related body corporate as defined in the Corporations Act 2001 (Cth).
“Renewal Term” means the Renewal Term specified in the Services Agreement.
“Representative” means the party employee nominated for that party in the Services Agreement or as advised in writing by such party from time to time to act on its behalf in connection with this Agreement.
“Service Order” means an order for the Services detailing the Services to be provided by Service Provider and executed by the Parties.
“Service Provider” means the service provider identified in the Agreement.
“Service Provider Contract Manager” means the Service Provider employee designated by Service Provider to serve as a primary contact with respect to this Agreement and who will have the authority to act on behalf of Service Provider in connection with matters pertaining to this Agreement.
“Service Provider Warranties” means the warranties provided by the Service Provider contained in clauses 8.1, 8.2, and 8.3.
“Services” means the services described in any Service Order to be provided by the Service Provider under this Agreement.
“Services Agreement” means the Services Agreement executed by the Parties into which the Terms and Conditions are incorporated.
(a) Sims Resource Renewal Pty Ltd ACN 000 554 656; and
(b) Sims Limited ACN 114 838 630 and any Related Bodies Corporate thereof.
“Sims Code of Conduct” means the code of conduct applicable to employees of Sims, a copy of which is available at https://www.simsltd.com/governance/.
“Sims Representative” means the Sims employee nominated in the Agreement or a Service Order or as advised in writing by Sims from time to time to act on behalf of Sims in connection with this Agreement.
“Term” means the Initial Term and any Renewal Term.
“Terms and Conditions” means these General Terms and Conditions for the Purchase of Services.
1.2 Rules for interpreting this Agreement
In this Agreement, unless the context indicates a contrary intention:
(a) headings are for convenience only, and do not affect interpretation;
(b) a reference to:
(i) legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it;
(ii) a document (including this Agreement), is to that document as varied, novated, ratified or replaced from time to time;
(iii) a party includes that party’s executors, administrators, successors and permitted assigns;
(iv) a person includes an individual, the estate of an individual, a corporation, an authority, an association or a joint venture (whether incorporated or unincorporated), a partnership and a trust; and
(v) a reference to a part, clause, schedule, exhibit, attachment or annexure is a reference to a part, clause, schedule, exhibit, attachment or annexure to or of this Agreement, and a reference to this Agreement includes all schedules, exhibits, attachments and annexures to it;
(c) a singular word includes the plural, and vice versa;
(d) a reference to “dollars” or “$” is to an amount in Australian currency;
(e) “includes” in any form is not a word of limitation; and
(f) an obligation or a liability assumed by, or a right conferred on, 2 (two) or more persons binds or benefits them jointly and severally.
1.3 Precedence of documents
In the event of any inconsistency between the documents comprising this Agreement, the precedence of documents shall be as follows:
(a) the Terms and Conditions;
(b) the Services Agreement;
(c) any schedule, attachment or annexure to the Services Agreement;
(d) any document incorporated as part of the Services Agreement;
(e) a Service Order.
2.1 Provision to Sims
Service Provider shall provide the Services to Sims as described in more detail in each Service Order in accordance with the terms and conditions of this Agreement.
2.2 Service Orders
(a) Each Service Order shall include the following information, if applicable:
(i) a detailed description of the Services to be performed pursuant to the Service Order;
(ii) the date upon which the Services will commence and the term of such Service Order;
(iii) the names of the Service Provider Contract Manager and any Key Personnel;
(iv) the fees to be paid to Service Provider under the Service Order;
(v) the Project implementation plan, including a timetable;
(vi) the location where the Services are required to be performed;
(vii) Project Milestones and payment schedules;
(viii) any criteria for completion of the Services/Project;
(ix) procedures for the testing and acceptance of the Services and Deliverables by Sims; and
(x) any other terms and conditions agreed upon by the parties in connection with the Services to be performed pursuant to such Statement of Work.
(b) No Service Order shall be binding on Sims until such time as an authorized representative of Sims has signed the Service Order.
(c) These Terms and Conditions shall be deemed incorporated into any Service Order and apply to the provision of any Services provided to Sims thereunder.
2.3 Change orders
(a) If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. Service Provider shall, within a reasonable time (not to exceed seven (7) days) after receiving a Sims-initiated request, or at the same time that Service Provider initiates such a request, provide a written estimate to Sims of:
(i) the likely time required to implement the change;
(ii) any necessary variations to the fees and other charges for the Services arising from the change;
(iii) the likely effect of the change on the Services;
(iv) any other impact the change might have on the performance of this Agreement; and
(v) any other information requested by Sims.
(b) Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a Change Order). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with clause 17.6.
2.4 No obligation or minimum volume
Sims is not obliged to order any Services from the Service Provider and may, at its sole discretion, obtain similar services to the Services from an alternative service provider. The Service Provider acknowledges and agrees that Sims makes no, and has made no, representation, warranty or commitment to acquire any particular minimum volume of Services during the Term.
The Service Provider may not subcontract the Services without the prior written consent of Sims. Such consent will not be unreasonably withheld by Sims. An approval to engage subcontractors for any part of the Services shall not relieve the Service Provider from any of its liabilities or obligations under this Agreement. The Service Provider shall be liable to Sims for the acts and omissions of its Personnel.
2.6 Compliance with legislation
In performing its obligations under this Agreement, Service Provider must comply with all Applicable Laws and shall indemnify, defend and hold harmless Sims and its Agents from and against all actions, costs, charges, claims and demands arising from a breach of Applicable Law.
2.7 Performance and account management requirements
The Service Provider shall provide Sims with performance and account management in accordance with the applicable Service Order.
2.8 Reporting requirements
The Service Provider shall provide Sims with reports in accordance with the applicable Service Order.
- SERVICE PROVIDER OBLIGATIONS
3.1 The Service Provider shall:
(a) subject to the prior written approval of Sims, which approval shall not be unreasonably withheld appoint:
(i) a Service Provider Contract Manager; and
(ii) Service Provider Personnel, who shall be suitably skilled, experienced, and qualified to perform the Services;
(b) maintain the same Service Provider Contract Manager and other Key Personnel throughout the Term of this Agreement except for changes in such personnel due to:
(i) Sims’s request pursuant to clause 3.1(c); or
(ii) the resignation or termination of such personnel or other circumstances outside of Service Provider’s reasonable control;
(c) upon the written request of Sims, promptly replace the Service Provider Contract Manager and any other Service Provider Personnel;
(d) before the date on which the Services are to start, obtain, and at all times during the Term of this Agreement maintain, all necessary licenses and consents and comply with all Applicable Laws in the provision of the Services;
(e) prior to any Service Provider Personnel performing any Services hereunder ensure that such Service Provider Personnel have the legal right to work in the country in which the Services are performed;
(f) comply with, and ensure that all Service Provider Personnel comply with, all rules, regulations, and policies of Sims that are communicated to Service Provider in writing, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Sims to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;
(g) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Service Provider in providing the Services in such form as Sims shall approve. During the Term and for a period of seven (7) years thereafter, upon Sims’s written request, Service Provider shall allow Sims or its representative to inspect and make copies of such records and interview Service Provider Personnel in connection with the provision of the Services; provided that any such inspection shall take place during regular business hours and upon at least ten (10) Business Days advance written notice;
(h) require each Permitted Subcontractor to be bound in writing by the confidentiality and intellectual property assignment or license provisions of this Agreement, and, upon Sims’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Sims.
3.2 Responsibility for Personnel
Service Provider is responsible for all Service Provider Personnel and for the payment of their compensation, including, if applicable, withholding of income taxes, and the payment and withholding of social security and other payroll taxes, unemployment insurance, workers’ compensation insurance payments, and disability benefits.
3.3 Time is of the essence
Service Provider acknowledges that time is of the essence with respect to Service Provider’s obligations hereunder and that prompt and timely performance of all such obligations, including all timetables, Project Milestones, and other requirements in this Agreement and each Service Order, is strictly required.
- FEES AND EXPENSES
In consideration of the provision of the Services by the Service Provider and the rights granted to Sims under this Agreement, Sims shall pay the fees set forth in the applicable Service Order. Payment to the Service Provider of such fees and the reimbursement of expenses pursuant to this clause 4 shall constitute payment in full for the performance of the Services, and, Sims shall not be responsible for paying any other fees, costs, or expenses. Unless otherwise agreed in the applicable Service Order, the fees set forth in a Service Order include all charges for any items (including Equipment and Deliverables) used or supplied in connection with the Services and all taxes and duties applicable to the supply of the Services, other than GST.
4.2 Reimbursement of expenses
Sims agrees to reimburse the Service Provider for all actual, documented, and reasonable travel and out-of-pocket expenses incurred by the Service Provider in connection with the performance of the Services that have been approved in advance in writing by Sims. Sims will have no obligation to reimburse the Service Provider for any expenses not approved in advance in writing by Sims.
- INVOICING AND PAYMENT
The Service Provider shall invoice Sims for the Services within 4 (four) days from the end of the month in which the Services were provided.
Subject to clauses 5.3 and 5.4, the invoiced amounts will be paid within 30 (thirty) days from the end of the calendar month in which the invoice is received.
5.3 Payment disputes
If Sims disputes or is unable to reconcile part of an invoice, Sims may withhold payment for the amount in dispute or in discrepancy until such dispute or discrepancy is resolved. In such case, Sims must immediately notify the Service Provider of the amount in dispute and the reasons for disputing it. The dispute is then to be resolved in accordance with clause 13.
5.4 Set off
Sims, without notice to the Service Provider, may set off any amount that is or may become owing by Sims to the Service Provider against, any amount owing by the Service Provider to Sims under this Agreement.
- ACCEPTANCE OF DELIVERABLES
Sims will evaluate each Deliverable and will accept or reject it within thirty (30) days after receipt, or as otherwise agreed. If Sims does not accept or reject a Deliverable within this period, the Deliverable will be deemed accepted unless otherwise agreed. The Service Provider will have ten (10) Business Days to fix any Deliverable after receiving notice from Sims. If the Service Provider does not fix the Deliverable, Sims may either reject the Deliverable without further obligation and receive a refund of any fees or expenses paid in connection with the Deliverable or work with the Service Provider to resolve the deficiencies.
- TERM AND TERMINATION
7.1 Initial Term
This Agreement starts on the Commencement Date and continues for the Initial Term unless terminated earlier by agreement in writing between the parties or in accordance with the terms of this Agreement.
7.2 Renewal Term
Upon expiry of the Initial Term or a Renewal Term, this Agreement shall be renewed for a Renewal Term unless either party provides notice of its intent not to renew the Agreement to the other party no less than one hundred eighty (180) days prior to the expiry of the Initial Term or current Renewal Term.
7.3 Termination for Cause
Either party may terminate this Agreement upon written notice to the other party (“Defaulting Party”) if:
(a) the Defaulting Party suffers an Insolvency Event which is not fully resolved, stayed, vacated or dismissed within forty-five (45) days of such event;
(b) the Defaulting Party ceases, or threatens to cease, to carry on its business;
(c) the Defaulting Party materially breaches this Agreement, and such breach is incapable of cure, or with respect to a material breach capable of cure, the Defaulting Party does not cure such breach within thirty (30) days after receipt of written notice of such breach;
(d) the Defaulting Party assigns or otherwise transfers its rights or obligations other than in accordance with the requirements of this Agreement; or
(e) the Defaulting Party is delayed or prevented from performing its obligations due to a Force Majeure Event that exceeds 30 (thirty) Business Days.
Sims may also terminate this Agreement in accordance with clause 17.17(b)(ii).
7.4 Termination for convenience and suspension
Sims reserves the right to terminate the Agreement or any Service Order, for convenience and without liability, in whole or in part, upon ten (10) days’ written notice. Once such notice has been given, Service Provider shall, except as and to the extent directed by Sims, discontinue performance under the Agreement or the specified Service Order. Sims shall not be liable for any amounts or expenses incurred by Service Provider in connection with the termination of any subcontracts entered into by Service Provider in connection with and prior to the termination of the Agreement or any Service Order. In the event of termination under this clause, Sims shall pay Service Provider only for those Services performed in compliance with this Agreement prior to termination but not yet paid for. Sims may, at its sole discretion, by written notice to Contractor, suspend at any time the performance of all or any portion of the Services. Service Provider shall immediately discontinue performing the Services on the date and to the extent specified in the notice.
7.5 Consequences of termination or expiry
Upon termination or expiry of this Agreement the Service Provider must, within ten (10) Business Days, deliver to Sims:
(a) any and all data, documents, records, plans, maps, diagrams, designs, manuals, software or other material forming the Developed IP;
(b) up to date reports in accordance with the applicable Service Order;
(c) any Equipment or Property provided by Sims in the same condition as at the Commencement Date, normal wear and tear excepted; and
(d) any Confidential Information belonging to Sims.
7.6 Survival of rights on termination
Termination of this Agreement shall be without prejudice to any other rights or obligations which may have accrued under this Agreement on or before termination, including in respect of an antecedent breach.
7.7 No claim in respect of termination
Subject to clause 7.6, neither party has any claim against the other in respect of the termination of this Agreement and/or any or all Service Orders under this clause 7.
8.1 Mutual warranties
Each party represents and warrants to the other that, as at the Commencement Date:
(a) it is duly incorporated and validly existing with limited liability under the laws of the place of its incorporation and has the power to own its assets and carry on its business as it is now being and will be conducted;
(b) it has the power to enter into, exercise its rights under and perform and comply with its obligations under this Agreement;
(c) all actions, conditions and things required to be taken, fulfilled and done by it in order to enable it to enter into, exercise its rights and perform and comply with its obligations under this Agreement have been done;
(d) all authorisations required for its entry into, exercise of its rights under and performance and compliance with its obligations under this Agreement have been obtained;
(e) its entry into, exercise of its rights under, and performance and compliance with its obligations under this Agreement do not and will not:
(i) to the best of that party’s knowledge and belief, contravene any Applicable Law; or
(ii) breach any agreement to which it is a party; and
(f) no litigation, arbitration, administrative, regulatory or similar proceeding is current, pending or, to its knowledge, threatened to restrain its entry into, exercise of its rights under, and performance and compliance with its obligations under this Agreement.
8.2 Warranties in relation to the Services
(a) The Service Provider warrants that:
(i) the Services will conform with the requirements of this Agreement;
(ii) the Services and the Deliverables will not infringe the Intellectual Property Rights of any third party; and
(iii) all Deliverables will be delivered to Sims free and clear of all encumbrances and liens of any kind.
(b) The Service Provider represents and warrants that when providing the Services, it will:
(i) provide sufficient and suitable personnel, and Equipment fit for the purpose it is required for;
(ii) exercise due care and diligence;
(iii) comply with all Applicable Laws including without limitation laws relating to work health and safety; and
(iv) provide the Services in a full and timely manner to the highest standards applicable in the Service Provider’s industry.
8.3 Warranties in relation to the Service Provider’s Agents
The Service Provider represents and warrants that it and its Agents will:
(a) have the requisite skill, competence, knowledge and expertise to provide the Services;
(b) comply with all reasonable directions of Sims and its Agents;
(c) at its own cost attend induction training provided by Sims, where required;
(d) when entering any Sims site:
(i) wear personal protective clothing and equipment while at the facility as is reasonably appropriate or otherwise required; and
(ii) comply with any conditions of entry or other site specific requirements as notified by Sims form time to time;
(e) not use any Property of Sims for any purpose other than for the provision of the Services and will return any Property of Sims used in the provision of the Services to Sims in good, undamaged, clean, and useable condition; and
(f) not represent to any person that they act as an employee or agent of Sims.
9.1 Service Provider’s Indemnities
The Service Provider shall be liable for and shall indemnify, and keep indemnified, Sims and its Agents from and against all costs, expenses, loss, liability or damage and any liability in respect of any action, claim, proceeding or demand in relation to or in connection with:
(a) loss or damage to any property; and
(b) personal injury to or death of any person,
by reason of any act or omission of the Service Provider or its Agents;
(c) any breach of the Service Provider Warranties; and
(d) any breach of its obligations under this Agreement.
9.2 Indemnities not affected by insurance
For the avoidance of doubt, the indemnities under this Agreement or otherwise, will not be affected in any way by any terms of insurance or any refusal by the insurer to indemnify a party under the policies of insurance.
10.1 Insurance requirements
The Service Provider shall, during the Term, take out and maintain;
(a) workers compensation insurance or applicable self-insurance, as required by law;
(b) professional indemnity insurance in the amount of $5,000,000 per occurrence and in the aggregate;
(c) public liability insurance to the value of $20,000,000 for each occurrence; and
(d) any other insurance it is required by Applicable Law to maintain.
10.2 Evidence of insurance
(a) The Service Provider shall provide to Sims, certificates of currency for the policies referred to in clause 10.1 and, if applicable, a statement under applicable workers compensation legislation or to the reasonable satisfaction of Sims as to the payment of workers compensation premiums, at the time of entering into this Agreement and on reasonable request by Sims.
(b) The Service Provider must give Sims not less than 1 (one) month’s notice whenever the Service Provider receives a notice of cancellation in respect of any such insurance.
10.3 Insurance conditions
All insurances which the Service Provider is required to effect under this Agreement:
(a) must be effected with reputable insurers;
(b) must note the rights and interests of Sims under this Agreement.
- INTELLECTUAL PROPERTY
11.1 Ownership of Intellectual Property Rights in Deliverables
(a) The Service Provider agrees that:
(i) as between the parties, Sims will own the Deliverables, including all Intellectual Property Rights in the Deliverables; and
(ii) other than as expressly stated in this Agreement, neither the Service Provider nor its Personnel has any right, title or interest or Intellectual Property Rights whatsoever in the Deliverables.
(b) The Service Provider absolutely assigns to Sims all its rights, title and interest in the Deliverables from the date of their creation, including all existing and future Intellectual Property Rights, to the extent permitted by law.
(c) The Service Provider warrants to Sims that:
(i) it has obtained from its Personnel and Agents a written and valid assignment of all existing and future Intellectual Property Rights in the Deliverables;
(ii) its Personnel and Agents have agreed to hold on trust for Sims any rights in which the legal title has not passed (or will not pass) to the Service Provider;
(iii) neither it, nor its Personnel, has given permission to any third party to use any of the Deliverables, nor any of the Intellectual Property Rights contained therein; and
(iv) neither it, nor its Personnel, is aware of any use by any third party of any of the Deliverables or Intellectual Property Rights contained therein.
(d) The Service Provider must, and procure that its Personnel will:
(i) if requested by Sims, promptly provide to Sims:
A. a copy of the Deliverables; and
B. a copy of any assignment referred to in clause 11.1(c)(i).
(ii) not register nor attempt to register any of the Intellectual Property Rights in the Deliverables unless requested to do so by Sims;
(iii) not question or dispute the ownership or validity of the Intellectual Property Rights in the Deliverables or claim or otherwise represent that either has any right, title or interest in or to any of those Intellectual Property Rights;
(iv) not give permission to any third party to use any of the Deliverables, nor any of the Intellectual Property Rights in the Deliverables;
(v) not do anything that is prejudicial to the interest of Sims in or to the Intellectual Property Rights in the Deliverables;
(vi) promptly notify Sims of any suspect or actual infringement by any person of the Intellectual Property Rights in the Deliverables;
(vii) provide, at Sims’s expense, such assistance as is reasonably requested by Sims in relation to any proceedings Sims may take against any person to protect the Intellectual Property Rights in the Deliverables; and
(viii) execute all documents, make all applications, give all assistance and do all acts and things either during or after the Term as may, in the opinion of Sims, be necessary or desirable to vest the Intellectual Property Rights in the Deliverables in Sims, in the event the assignment in clause 11.1(b) is deemed insufficient for any reason.
(e) If any of the Service Provider’s Personnel is the author of any copyright works created during the course of creating the Deliverables, the Service Provider warrants that the relevant member of its Personnel consents to Sims (and Sims’s successors, assignees and licensees) engaging in any act or omission that would otherwise infringe that member of the Service Provider’s Personnel’s moral rights including not attributing authorship to that member of the Service Provider’s Personnel.
(f) The Service Provider must, on request by Sims, obtain from its Personnel written, unconditional and irrevocable consent to any act or omission that may infringe their moral rights in the Deliverables for the benefit of Sims, its successors, assignees and licensees in a form reasonably acceptable to Sims and provide copies of such consents within fourteen (14) days of Sims’s request.
11.2 Ownership of Pre-existing IP
Unless otherwise agreed in writing, each party owns, and will continue to own, all Intellectual Property Rights subsisting in its own Pre-existing IP.
11.3 Licence to use Pre-existing IP
Each party grants to the other party an irrevocable, non-exclusive, world-wide, royalty free licence to use, reproduce, modify and adapt its Pre-existing IP (and to sub-licence these rights) for the purposes of:
(a) performing its obligations, or exercising its rights, under this Agreement or providing or using the Services or Deliverables; and
(b) in the case of Sims, exercising its rights in the Developed IP.
11.4 Ownership of Developed IP
Intellectual Property Rights in the Developed IP vest in Sims.
- LIMITATION OF LIABILITY
Nothing in this Agreement limits or excludes Sims’s liability for any matter that cannot be limited or excluded by Applicable Laws.
12.2 Exclusion of certain liabilities and damages
Subject to clause 12.1, Sims excludes any liability to the Service Provider, whether in contract, tort (including negligence) or otherwise, for any punitive or exemplary damages and special, indirect or consequential loss arising under or in connection with this Agreement, including without limitation, any loss of profits, loss of sales or business, loss of production, loss of agreements or contracts, loss of business opportunity, loss of anticipated savings, loss of or damage to goodwill, loss of reputation, or loss of use or corruption of software, data or information.
12.3 Limit on liability
SUBJECT TO CLAUSE 12.1 AND NOTWITHSTANDING ANYTHING TO THE CONTRARY, SIMS’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT WHATSOEVER (INCLUDING WITHOUT LIMITATION UNDER ANY SERVICE ORDER) (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 AGGREGATE PRICE PAID FOR THE SERVICES PROVIDED BY THE SERVICE PROVIDER DURING THE TWELVE (12) MONTHS PRIOR TO A CLAIM ARISING.
- DISPUTE RESOLUTION
If a dispute arises out of or in relation to this Agreement, the Sims Representative and the Service Provider Representative shall in the first instance endeavour to settle the dispute in good faith within seven (7) days. In the event that the Sims Representative and the Service Provider Representative are unable to settle the dispute within the nominated timeframe, the matter shall be referred to other representatives within the respective organisations for settlement within a further seven (7) days.
Where a dispute cannot be settled in accordance with clause 13.1, Sims and the Service Provider will endeavour to settle the matter with the assistance of a mediator appointed by the Institute of Arbitrators and Mediators Australia before having recourse to litigation. Either party may request that the president of the Institute of Arbitrators and Mediators Australia appoint a mediator to the dispute and must, at the time of making that request, provide a copy of that request to the other party. The costs of the mediator will be born equally by the parties.
If the dispute is not settled by mediation within twenty-one (21) days of commencing the mediation, or such further period as the parties shall agree in writing, the dispute shall be referred to and finally resolved by binding arbitration conducted by the Australian Centre for International Commercial Arbitration (“ACICA”) pursuant to the ACICA Arbitration Rules then in effect, which rules are deemed to be incorporated by reference into this clause. The number of arbitrators shall be three (3). The seat, or legal place, of arbitration shall be New South Wales, Australia. The arbitral proceedings shall be conducted in English. The substantive law governing this arbitration agreement and the arbitral proceedings shall be the laws of the State of New South Wales, Australia.
13.4 Performance during dispute resolution
The parties shall continue to perform their respective obligations under this Agreement pending the resolution of a dispute under this clause 13.
13.5 Interlocutory relief
The parties acknowledge that no dispute or difference giving rise to a cause of action will be deemed to have arisen until the procedures set out in this clause 13 have been exhausted, unless urgent interlocutory relief is required.
- FORCE MAJEURE
14.1 Force Majeure Event
Subject to clause 14.2, non-performance as a result of a Force Majeure Event by a party of any obligation or condition required by this Agreement to be performed by it:
(a) will be excused during the time and to the extent that such performance is prevented, wholly or in part, by the Force Majeure Event; and
(b) will not to that extent give rise to any liability to the other party for any direct, indirect, consequential or special losses or damages of any kind arising out of, or in any way connected with that non-performance.
14.2 Notification and Diligence
A party which is, by reason of a Force Majeure Event, unable to perform any obligation or condition required by this Agreement to be performed will:
(a) notify the other party as soon as possible giving:
(i) reasonably full particulars of the event or circumstance of the Force Majeure Event;
(ii) the date of commencement of the Force Majeure Event and an estimate of the period of time required to enable it to resume full performance of its obligations where these particulars are available at the time of the Force Majeure Event notice; and
(iii) where possible, the means proposed to be adopted to remedy or abate the Force Majeure Event;
(b) use all reasonable diligence and employ all reasonable means to remedy or abate the Force Majeure Event as expeditiously as possible;
(c) resume performance as expeditiously as possible after termination of the Force Majeure Event or after the Force Majeure Event has abated to an extent which permits resumption of performance;
(d) notify the other party when the Force Majeure Event has terminated or abated to an extent which permits resumption of performance to occur; and
(e) notify the other party when resumption of performance will occur.
14.3 Liability Not Relieved
A Force Majeure Event affecting the performance under this Agreement by a party, will not relieve that party of liability in the event, and to the extent that:
(a) its negligence caused or contributed to its failure to perform under this Agreement; or
(b) it failed to use all reasonable endeavours to remedy the situation and to remove the event or circumstances giving rise to the Force Majeure Event.
Neither will a Force Majeure Event relieve either party from its obligations to make payments of amounts then due in respect of obligations under this Agreement which have been performed prior to the occurrence of the Force Majeure Event.
- GOODS AND SERVICES TAX
(a) Except where the context suggests otherwise, terms used in this clause 15 have the meanings given to those terms by the A New Tax System (Goods and Services Tax) Act 1999 (as amended from time to time);
(b) any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 15;
(c) unless otherwise stated, any amount, payment or consideration referred to under or in connection with this Agreement is exclusive of GST; and
(d) any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 15.
15.2 Reimbursements and similar payments
Any payment or reimbursement required to be made under this Agreement for a cost, expense, or other amount paid or incurred will be limited to the total cost, expense or amount less the amount of any input tax credit to which an entity is entitled for the acquisition to which the cost, expense or amount relates.
15.3 GST payable
If GST is payable in relation to a supply made under or in connection with this Agreement then the party (“Recipient”) that is required to pay or provide consideration to the other party (for the purposes of this clause 15 only, “Supplying Party”) for that supply must, subject to receipt of a valid tax invoice, pay an additional amount to the Supplying Party equal to the amount of that GST at the same time as the other consideration is to be paid or provided for that supply.
15.4 Variation of GST
If the GST payable in relation to a supply made under or in connection with this Agreement varies from the additional amount paid by the Recipient and the Supplying Party must issue an Adjustment Note as required under GST law under clause 15 such that:
(a) a further amount of GST is payable in relation to the supply; or
(b) a refund or credit of GST is obtained in relation to the supply,
then the Supplying Party will provide a corresponding refund or credit to, or will be entitled to receive the amount of that variation from, the Recipient. Any payment, credit or refund under this clause 15 is deemed to be a payment, credit or refund of the additional amount payable under clause 15.3.
16.1 Compliance with Privacy Act
The Service Provider warrants that it complies with and will continue to comply with the Privacy Act and all other applicable privacy laws.
16.2 Handling Personal Information
If the Service Provider collects, holds, uses or discloses Personal Information in the course of or relating to this agreement, the Service Provider must:
(b) only use Personal Information for the purpose of performing its obligations under this Agreement; and
(c) not disclose Personal Information to any third party (including any subcontractor) without Sims’s prior written consent or as required by law.
16.3 Data Incident
If the Service Provider becomes aware, or there are reasonable grounds to suspect, that a Data Incident has occurred, the Service Provider must:
(a) immediately take reasonable steps to contain the Data Incident and prevent any further serious harm to affected individuals;
(b) immediately notify Sims in writing stating the:
(i) nature and details of the Data Incident;
(ii) specific Personal Information affected; and
(iii) actions taken by the Service Provider at clause 16.3(a);
(c) identify whether the Data Incident is an Eligible Data Breach by conducting a thorough investigation of the Data Incident within 20 (twenty) days of becoming aware of the Data Incident (“Data Breach Investigation”);
(d) provide a copy of the report of the Data Breach Investigation in clause 16.3(c) to Sims on completion;
(e) engage in discussions with Sims regarding:
(i) the conduct and outcomes of the Data Breach Investigation; and
(ii) in the case of an Eligible Data Breach, whether Sims or the Service Provider will make the relevant notifications under the Privacy Act; and
(f) where it is agreed by the parties that the Service Provider is making the relevant notifications, Sims must approve the notifications before they are made (such approval to be given promptly and not to be unreasonably withheld).
16.4 Handling of Personal Information by Agents
The Service Provider will ensure that its Agents and advisors who are required to handle Personal Information in the course of this agreement are made aware of the obligations of that party in this clause 16.
The Service Provider shall indemnify Sims in full against any liabilities, costs, charges, or expenses, damages and losses and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses suffered or incurred by Sims arising out of or in connection with any claim in connection with or related in any way to any act or omission by the Service Provider in relation to Personal Information.
17.1 Audit provisions
(a) The Service Provider shall maintain proper records and retain all original paperwork, including receipts arising out of, or in connection with all Services in respect of which payment is due to it under this Agreement. Sims and its professional advisers shall have a right of access to the Service Provider’s premises, systems and information (excluding confidential financial records) on the giving of reasonable notice during normal business hours to ensure that the Service Provider has complied, is complying and will be able to continue to comply with its obligations under this Agreement. The Service Provider shall retain all documents relating to this Agreement for a period of 7 (seven) years following the termination or expiry of this Agreement; and
(b) this clause 17.1 shall survive termination of this Agreement.
17.2 Entire Agreement
To the extent permitted by law, in relation to the subject matter, this Agreement (together with any document or agreement referred to in it):
(a) embodies the entire understanding of the parties and constitutes the entire terms agreed by the parties; and
(b) supersedes any prior written or other agreement of the parties,
except in relation to an agreement entered into which expressly provides that it forms part of or relates to this Agreement.
17.3 Relationship of the parties
The parties acknowledge that:
(a) the Service Provider is engaged by Sims as an independent contractor and nothing in this Agreement creates or constitutes a relationship of employer and employee, principal and agent, trustee and beneficiary or of partnership or joint venture between the parties;
(b) any Service Provider Personnel will remain at all times an employee, independent contractor or agent of the Service Provider;
(c) nothing contained in this Agreement is to be read or construed as to the limit or exclude the duties of good faith and fidelity or at common law, in equity or by statute owed to Sims by the Service Provider.
(d) Sims shall have no liability or responsibility for withholding or remitting any income, payroll, or other taxes or premiums for the Service Provider. The Service Provider is responsible for these withholding, remitting and registration obligations, and indemnifies Sims from and against any order, penalty, interest, taxes or contributions that may be assessed against Sims due to the failure or delay of the Service Provider to make any such withholdings, remittances or registration, or to file any information required by any law; and
(e) The Service Provider shall be fully responsible for its Personnel and indemnifies Sims against any claims made by or on behalf of any of the Service Provider’s Personnel, including, without limitation, any claim for unpaid wages, overtime, vacation pay, or any other claim under employment standards legislation, reasonable notice of termination, or any other claim whether arising pursuant to contract, statute, common law or otherwise.
17.4 Surviving Obligations
Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this Agreement shall remain in full force and effect including, without limitation, clauses 8 (Warranties), 9 (Indemnities), 11 (Intellectual Property), 12 (Limitation of Liability), 13 (Dispute Resolution), 16.3 (Data Incident), 16.5 (Indemnity), and 17 (General).
A notice, consent or other communication under this Agreement is only effective if it is:
(a) in writing;
(b) addressed to the party’s Representative; and
(c) sent by email to all email address(es) listed for a Representative in the Agreement.
A notice, consent or other communication that complies with this clause is regarded as given and received:
(i) by 5.00 pm (local time in the place of receipt) on a Business Day – on that day; or
(ii) after 5.00 pm (local time in the place of receipt) on a Business Day, or on a day that is not a Business Day – on the next Business Day.
17.6 Amendment and assignment
(a) This Agreement can only be amended, supplemented, replaced or novated by agreement by the parties in writing.
(b) The Service Provider may only assign this Agreement with the written consent of Sims.
(c) A party may only dispose of, declare a trust over or otherwise create an interest in its rights under this Agreement with the consent of the other party.
If any provision, or part thereof, is found by any court, tribunal, administrative body or authority of competent jurisdiction to be illegal, invalid or unenforceable, such provision, or part thereof, will to the extent required be severed from this Agreement and replaced with a valid provision that as near as possible reflects the parties’ original intent. No other provisions shall be affected and will remain in full force and effect.
17.8 Liability for expenses
Each party must pay its own expenses incurred in negotiating, executing, stamping and registering this Agreement.
17.9 Giving effect to this Agreement
Each party must do anything (including execute any document), and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this Agreement.
17.10 Waiver of rights
A right may only be waived in writing, signed by the party giving the waiver, and:
(a) no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right;
(b) a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and
(c) the exercise of a right does not prevent any further exercise of that right or of any other right.
17.11 Operation of this Agreement
(a) Any right that a person may have under this Agreement is in addition to, and does not replace or limit, any other right that the person may have.
(b) Any provision of this Agreement which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this Agreement enforceable, unless this would materially change the intended effect of this Agreement.
Where this Agreement contemplates that the parties may agree or consent to something (however it is described), the parties may:
(a) agree or consent, or not agree or consent, in its absolute discretion; and
(b) agree or consent subject to conditions,
unless this Agreement expressly contemplates otherwise.
17.13 Warranty of authority
Each person who executes this Agreement on behalf of a party warrants that he or she has authority to execute this Agreement on behalf of that party.
17.14 No right of lien
The Service Provider shall have no right of lien in respect of any Property or documents in respect of any amounts withheld by Sims in accordance with clause 6.3.
Each party must keep the terms of this Agreement and the other party’s Confidential Information confidential and must not cause or permit any persons to disclose the terms of this Agreement or the other party’s Confidential Information without the consent of the other party except:
(a) where necessary for the exercise of any right or compliance with any obligation under this Agreement;
(b) as required by law or by lawful requirement of any government or governmental agency having jurisdiction over the party or its Related Bodies Corporate;
(c) by a party to legal and other professional advisers, auditors and other consultants and employees of:
(i) that party; or
(ii) that party’s Related Bodies Corporate;
(d) to the extent required by a lawful requirement of any applicable stock exchange;
(e) if necessary or commercially desirable to be disclosed in any prospectus or information memorandum to investors or proposed or prospective investors:
(i) for an issue or disposal of any shares in a party or its Related Bodies Corporate;
(ii) for an issue of debt instruments of a party or a party’s Related Bodies Corporate;
(f) if necessary or commercially desirable to disclosed to any existing or bona fide proposed or prospective financier, ratings agency, transferee of real property, assignee or purchaser of the party; or
(g) if required in connection with legal proceedings, arbitration or determination by a panel or an expert relating to this Agreement or for the purpose of advising a party in relation thereto.
17.16 Governing Law and jurisdiction
This Agreement shall be governed and construed in accordance with the laws of the State of New South Wales and, subject to clause 13, the parties submit to the exclusive jurisdiction of the courts of that State.
17.17 Code of Conduct
(a) The Service Provider acknowledges that it is bound by the Sims Code of Conduct and agrees that it will:
(i) at all times during the Term comply with, and ensure its Personnel comply with, the Sims Code of Conduct; and
(ii) not engage in any conduct that causes or encourages a Sims employee, agent or other contractor to breach the Sims Code of Conduct; and
(iii) promptly notify Sims if it becomes aware or suspects that any of its Personnel or any of Sims’s employees, agents or other contractors have breached the Sims Code of Conduct.
(b) The Service Provider acknowledges that:
(i) damages alone may not be an adequate remedy for breach of the Sims Code of Conduct; and
(ii) Sims will be entitled to immediately terminate this Agreement, by giving notice to the Service Provider, if the Service Provider has committed a breach of the Sims Code of Conduct.
This Agreement may be executed in counterparts and by electronic or facsimile signature, each of which shall be deemed an original and all of which together shall constitute one instrument.