Applicability. (a) These terms and conditions of purchase (Terms) are the only terms which govern the purchase of the goods (Goods) and services (Services) by Sims Resource Renewal Pty Ltd. (ACN 000 554 656) (Buyer) from the seller named on the Purchase Order (Seller) to the exclusion of any other terms that the Seller seeks to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing. (b) These Terms and the purchase order (Purchase Order) incorporating these Terms are collectively referred to as this Agreement and comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement expressly limits Seller’s acceptance to the terms of this Agreement. Any act by Seller consistent with fulfilling the Purchase Order constitutes acceptance of these Terms.
Seller’s obligations in respect of Goods. Seller shall ensure that the Goods: (a) correspond with their description and any applicable specification for the Goods, including any related plans and drawings provided or agreed upon by Buyer; (b) are of satisfactory quality and fit for any purpose held out by Seller or made known to Seller by Buyer, expressly or by implication, and in this respect Buyer relies on Seller’s skill and judgement; and (c) comply with all applicable statutory and regulatory requirements relating to the manufacture, labelling, packaging, storage, handling and delivery of the Goods.
Delivery of Goods. (a) Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (Delivery Date). If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. (b) Seller shall deliver all Goods to the address specified in the Purchase Order (Delivery Point) during Buyer’s normal business hours or as otherwise instructed by Buyer. Seller shall pack all goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s risk of loss and expense. (c) Seller shall not deliver the Goods in instalments without Buyer’s prior written consent. Where it is agreed that the Goods are delivered by instalments, they may be invoiced and paid for separately. However, failure by Seller to deliver any one instalment on time or at all or any defect in an instalment shall entitle Buyer to refuse to accept any subsequent delivery of the Goods which Seller attempts to make, to obtain a refund of any sums paid in advance for Goods not delivered and recover from Seller any costs incurred by Buyer in obtaining substitute goods from a third party. (d) If Seller delivers more than 110% or less than 90% of the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s sole risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
Shipping terms. Delivery shall be made DDP Delivery Point unless otherwise stated in the Purchase Order. The Purchase Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Purchase Order.
Title and risk of loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point.
Inspection and Rejection of Nonconforming Goods. Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (i) rescind this Agreement in its entirety; (ii) accept the Goods at a reasonably reduced price; or (iii) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to clause 19. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under this Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
Seller’s obligations in respect of Services. In providing the Services, Seller shall: (a) co-operate with Buyer in all matters relating to the Services and comply with all instructions of Buyer; (b) perform the Services with the best care, skill and diligence in accordance with best practice in Seller’s industry, profession or trade; (c) use personnel, including agents, subcontractors, or anyone acting for or on behalf of the Seller, who are suitably skilled and experienced to perform tasks assigned to them, and in sufficient number to ensure that Seller’s obligations are fulfilled in accordance with this Agreement; (d) ensure that the Services will conform with all descriptions, standards and specifications set out in the Purchase Order or any proposal or other document agreed upon by the parties, and that the deliverables shall be fit for any purpose that Buyer expressly or impliedly makes known to Seller; (e) provide all equipment, tools and vehicles and such other items as are required to provide the Services and ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by Buyer; (f) use the best quality goods, materials, standards and techniques, and ensure that the deliverables, and all goods and materials supplied and used in the Services or transferred to Buyer, will be free from defects in workmanship, installation and design; (g) obtain and at all times maintain all licences, permits and consents which may be required for the provision of the Services; (h) observe all health and safety rules and regulations and any other security requirements that apply at any of Buyer’s premises, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Buyer to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures; (i) hold all materials, equipment and tools, drawings, specifications and data supplied by Buyer to Seller (Buyer Materials) in safe custody at its own risk, maintain Buyer Materials in good condition until returned to Buyer, and not dispose of or use Buyer Materials other than in accordance with Buyer’s written instructions or authorisation; (j) not do or omit to do anything which may cause Buyer to lose any licence, authority, consent or permission upon which it relies for the purposes of conducting its business, and Seller acknowledges that Buyer may rely or act on the Services; (k) 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 Seller in providing the Services in such form as Buyer shall approve. During the term of this Agreement and for a period of 3 years thereafter, upon Buyer’s written request, Seller shall allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services;
Time is of the essence. Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement.
Price. The price of the Goods and Services is the price stated in the Purchase Order (Price). If no price is included in the Purchase Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees and applicable taxes, excluding Goods and Services Tax (GST). In respect of any taxable supply, Buyer shall pay to Seller an additional amount equal to the prevailing GST rate, payable at the same time and in the same manner as the fees. No increase in the Price is effective, whether due to increased material, labour or transportation costs or otherwise, without the prior written consent of Buyer.
Payment terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller within 60 days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. Unless otherwise stated in the Purchase Order, all payments hereunder will be in Australian dollars. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller under this Agreement. In the event of a payment dispute, Buyer shall deliver a written statement to Seller prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this clause. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
Change orders. Buyer may at any time, by written instructions and/or drawings issued to Seller (each, a Change Order), order changes to the Services. Seller shall within 10 days of receipt of a Change Order submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller’s compensation or the performance deadlines under this Agreement.
Warranties. (a) Seller warrants and represents that: (i) the execution and delivery of the Contract has been properly authorised; (ii) it has full corporate power to execute, deliver and perform its obligations under this Agreement; (iii) performance of its obligations under this Agreement will not cause Seller to breach or otherwise be in default of any other agreement to which it is a party; (iv) it has the necessary expertise, skill, knowledge and resources to enable it to comply with its obligations under this Agreement; (v) this Agreement constitutes a legal, valid and binding obligation upon it and is enforceable in accordance with its terms by appropriate legal remedy; (vi) there are no actions, claims, proceedings or investigations pending or threatened against it or by it of which it is aware and which may have a material effect on the subject matter of this Agreement; (vii) it has and will continue to have at all material times all licences, authorisations, consents, approvals and permits required by all applicable laws and regulations in order to perform the Services, provide the Goods and to otherwise perform its obligations under this Agreement; (viii) it holds and will continue to hold the insurance policies as required under this Agreement; and (ix) it complies and will continue to comply with all laws, regulations, standards and industry best practice applicable to the Services, the Goods and the performance of its obligations under this Agreement. (b) Seller warrants to Buyer that for a period of 12 months from the Delivery Date, all Goods will: (i) be free from any defects in workmanship, material and design; (ii) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (iii) be fit for their intended purpose and operate as intended; (iv) be merchantable; (v) be free and clear of all liens, security interests or other encumbrances; and (vi) not infringe or misappropriate any third party’s patent, copyright, trade mark, trade secret or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer; (c) Seller must assign and deliver any third party warranty to Buyer by the time of delivery. (d) The warranties set forth in this clause 12 are cumulative and in addition to any other warranty provided by law or equity. (e) Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance pursuant to this Section, Seller shall, at its own cost and expense, promptly, but not more than 21 days unless otherwise agreed to in writing, (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer, and, if applicable, (ii) repair or re-perform the applicable Services.
Intellectual property rights. All intellectual property rights in Goods based upon or arising from Buyer’s information or developed specifically for Buyer and any deliverables produced in performance of the Services arising in connection with this Agreement is the property of Buyer, and the Seller assigns absolutely with full title guarantee all such intellectual property rights to Buyer. The parties must execute all documents necessary to give effect to this clause. Nothing in this Agreement will affect the pre-existing intellectual property rights of the parties, provided that Seller grants to Buyer an irrevocable, non-exclusive, world-wide, paid-up royalty free licence to use, reproduce, modify and adapt Seller’s pre-existing intellectual property to the extent necessary to permit the intended use of the Goods, Services or any deliverable.
Indemnification. (a) Seller shall defend, indemnify and hold harmless Buyer and Buyer’s parent company, their subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, Indemnitees) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, Losses) arising out of or occurring in connection with (i) the Goods and Services purchased from Seller, (ii) any act, omission, negligence, wilful misconduct or breach of this Agreement by Seller (including its employees, agents and subcontractors), or (iii) any claim that Buyer’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade mark, trade secret or other intellectual property right of any third party. Seller shall not enter into any settlement without Buyer’s prior written consent. If Buyer is entitled under this Agreement to be reimbursed or indemnified by Seller for a cost or expense incurred in connection with this Agreement, the reimbursement or indemnity payment must not include any GST component of the cost or expense to the extent that the cost or expense is the consideration for a creditable acquisition made by Buyer. (b) If a third party claims, or Buyer reasonably believes that a third party is likely to claim, that all or part of the Goods or Services infringes the intellectual property right of that third party, Seller, at its own cost and expense, must, in addition to the indemnity under this Agreement and to any other rights that Buyer may have against it, promptly, at Buyer’s discretion: (i) use its best efforts to secure the rights for Buyer to continue to use the affected Goods or Services free of any claim or liability for infringement or (ii) replace or modify the affected Goods or Services so that they or the use of them does not infringe the intellectual property rights of any other person without any degradation of the performance or quality of the affected Goods or Services.
Limitation of liability. (a) Nothing in this Agreement limits or excludes liability for any matter that cannot be limited or excluded by applicable law. (b) Subject to clause 16(a), Buyer excludes any liability to Seller, 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 any: (i) loss of profits; (ii) loss of sales or business; (iii) loss of production; (iv) loss of agreements or contracts; (v) loss of business opportunity; (vi) loss of anticipated savings; (vii) loss of or damage to goodwill; (viii) loss of reputation; or (ix) loss of use or corruption of software, data or information. (c) Limit on liability. Subject to clause 16(a) and notwithstanding anything to the contrary, Buyer’s maximum aggregate liability under this Agreement whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution under any indemnity or otherwise) for any damage or loss howsoever caused will be limited to the aggregate price paid for the Goods or Services under the applicable Purchase Order.
Insurance. During the term of this Agreement and for a period of 3 years thereafter, the Seller shall maintain in force, with a reputable insurance company, professional indemnity insurance, product liability insurance and public liability insurance to cover the liabilities that may arise under or in connection with this Agreement, and shall, on Buyer’s request, produce both the insurance certificate giving details of cover and the receipt for the current year’s premium in respect of each insurance.
Compliance with law. Seller shall comply with all applicable laws, regulations and ordinances. Seller shall maintain in effect all the licences, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Seller shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
Termination. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or the Seller’s delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Agreement upon written notice to Seller. Buyer may terminate for convenience by giving Seller at least 10 days’ notice. If Buyer terminates this Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Buyer prior to the termination. Upon termination, Seller shall immediately deliver to Buyer all deliverables of the Services whether or not then complete, and return all Buyer Materials. Termination of this Agreement shall not affect the parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.
Waiver. No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Confidential information. All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) already known to Seller at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such party’s (Impacted Party) failure or delay is caused by or results from the following force majeure events (Force Majeure Event(s)): (a) acts of God; (b) flood, fire, earthquake, pandemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency. The Impacted Party shall give notice within 10 days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of 30 consecutive days following written notice given by it under this clause 22, the other party may thereafter terminate this Agreement upon written notice.
Assignment and subcontracting. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder and Seller shall remain fully responsible for the performance of its subcontractors and their employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller’s own employees. Seller shall require each of its subcontractors to be bound in writing by the confidentiality provisions of this Agreement, and to enter into a non-disclosure or intellectual property assignment or licence agreement in a form that is reasonably satisfactory to Buyer. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller’s prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer’s assets. Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Seller subcontractor or supplier.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and, with respect to clause 15, Indemnitees, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Dispute resolution. (a) Disputes. If a dispute arises out of or in relation to this Agreement, Buyer and Seller shall nominate representatives who shall in the first instance endeavour to settle the dispute in good faith within 7 days. In the event that the representatives are unable to settle the dispute within the nominated timeframe, the matter shall be referred to senior management of each party for settlement within a further 7 days. (b) Mediation. Where a dispute cannot be settled in accordance with the preceding clause, Buyer and Seller 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. (c) Arbitration. If the dispute is not settled by mediation within twenty-one 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 1 for disputes involving less than $1,000,000 and 3 for disputes involving more than $1,000,000 with each party selecting one arbitrator and those arbitrators selecting a third. 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. (d) 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.
Governing law and jurisdiction. All matters arising out of or relating to this Agreement are governed by the laws of the State of New South Wales, Australia without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than those of the State of New South Wales, Australia. Application of the U.N. Convention on Contracts for the International Sale of Goods is expressly excluded. Subject to clause 26, each party irrevocably submits to the exclusive jurisdiction of courts exercising jurisdiction in New South Wales, Australia and courts of appeal from them in respect of any proceedings arising out of or in connection with this Agreement. Each party irrevocably waives any right it has to object to the venue of any legal process in such courts on the basis that any proceeding arising out of or in connection with this agreement has been brought in an inconvenient forum or that such courts do not have jurisdiction.
Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a Notice) shall be in writing and addressed to the parties at the addresses that may be designated by the receiving party in writing or if none has been designated at the parties’ registered address. Buyer’s address for Notices shall be that address listed on the Purchase Order. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. If any provision of this Agreement is deemed deleted under this clause, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
Survival. Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect including, without limitation the following provisions: clause 12 (Warranties), clause 14 (Privacy and data protection), clause 15 (Indemnification), clause 16 (Limitation of Liability), clause 17 (Insurance), clause 18 (Compliance with laws), clause 21 (Confidential Information), clause 26 (Dispute resolution), clause 27 (Governing law and jurisdiction) and clause 30 (Survival).
Amendment and modification. These Terms may only be amended or modified in a writing stating specifically that it amends these Terms and is signed by an authorised representative of each party.