GENERAL TERMS AND CONDITIONS FOR THE PURCHASE OF SERVICES
1. DEFINITIONS.
“Agreement” means these terms and conditions and any agreement, Statement of Work, purchase order, or other document incorporating these terms and conditions.
“Authorizations” means all permits, licenses, approvals, certificates, or other documentation required to provide the Work in compliance with all applicable Laws.
“Confidential Information” means any SMM information that is treated as confidential by SMM, including, without limitation, all nonpublic information, documents, or materials concerning SMM or its clients’ business such as personnel information, trade secrets, methods, processes, models, finances, blueprints, documents, know-how or otherwise sensitive business information including information developed during the course of the Work. Confidential Information shall not include information that: (a) is already known to the Contractor without restriction on use or disclosure prior to receipt of such information from SMM; (b) is or becomes generally known by the public other than by breach of the Agreement by, or other wrongful act of, Contractor; (c) is developed by Contractor independently of, and without reference to, any Confidential Information; or (d) is received by Contractor from a third party who is not under any obligation to maintain the confidentiality of such information.
“Contractor” means the entity selling services and/or goods to SMM identified in any Agreement incorporating these terms and conditions.
“Deliverable(s)” means any materials, articles, substances, models, samples, software, data, records, reports, notices, documents, photographs, video recordings, audio recordings, drawings, designs, specifications, information and the like (in whatever form) that Consultant is specifically obligated to furnish SMM or that are identified as Deliverables in this Agreement or any SOW.
“Facility” means the SMM buildings, grounds and premises including all equipment, vehicles, materials, personal property, personnel, guests or invitees thereupon.
“Force Majeure Event” means events beyond the reasonable control of the Party so claiming, including but not limited to Acts of God, acts of terrorism, strikes, shutdowns, extreme weather, and governmental actions or restrictions.
“General Terms and Conditions” means these General Terms and Conditions for the Purchase of Services.
“Indemnitees” means SMM, its direct and indirect owners and each of their shareholders, directors, officers, partners, employees, agents, subsidiaries, affiliates, heirs, successors and assigns.
“Intellectual Property Right(s)” means any and all existing or future, registered or unregistered, tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, privacy rights, publicity rights, and maskworks, and all derivative works thereof, (ii) trademark and trade name rights and similar rights, (iii) trade secret rights, (iv) patents, designs, algorithms and other industrial property rights, (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of common law, statute, contract, license, or otherwise, together with all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
“Law(s)” means all applicable statutes, laws, acts, regulations, or ordinances of any local, state or federal authority as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time.
“Losses” means any and all claims, suits, demands, charges, proceedings, judgments, damages, liabilities, fines, penalties, losses, costs and expenses including expert and attorneys’ fees and costs of investigation or remediation.
“Moral Right(s)” means all rights of paternity, integrity, disclosure, and withdrawal and any other rights that may be known as “moral rights.”
“SMM” means the Sims Metal Management entity identified in any agreement incorporating these terms and conditions.
“Statement of Work” or “SOW” means any statement of work, purchase order, work order or similar document for the procurement of Contractor to perform Work.
“Subcontractor(s)” means all persons, firms, agents, suppliers or subcontractors which furnish material, labor, equipment or services to Contractor in connection with the Work.
“Work” any and all work or services furnished pursuant to the Agreement.
2. OWN EQUIPMENT. Contractor shall perform the Work at its own risk and expense and only as authorized by SMM in accordance with SMM’s policies and procedures including the furnishing of all materials, labor, supervision, power, tools, equipment, and all other items necessary for performance of the Work and compliance with the Agreement. In the event of any conflict or inconsistency between the Agreement and any terms and conditions contained in any SOW, estimate, bid, purchase order or other agreement pertaining to the Work, the Agreement shall control.
3. LOSS OR DAMAGE. Contractor shall assume full liability for any and all property lost or damaged while under its care except when loss or damage arises from a Force Majeure. SMM shall not be liable for any loss or damage to Contractor’s work, materials, tools or equipment or any part thereof as a result of theft, fire damage, loss, destruction or any other cause or casualty during the course of the Work.
4. CLEAN UP. Contractor shall be fully responsible for removal and disposal of all debris, waste (including, without limitation, hazardous wastes or hazardous materials or substances) or other materials (exclusive of scrap metal) resulting from the Work, all in full compliance with applicable Laws. Any expense incurred by SMM to clean up and/or remove said debris shall be immediately due and payable by Contractor or, at SMM’s option, back charged against Contractor’s account.
5. DESIGN BY CONTRACTOR. The Work by Contractor shall not include design unless expressly agreed to in writing by the parties. If the Work by Contractor includes design, Contractor agrees to prepare and furnish to SMM for its approval such plans, working drawings and specifications covering the Work, and in such numbers, as reasonably required by SMM; provided, however, such approval shall not be deemed a waiver of, and shall not release Contractor from, any of its warranties, guarantees or obligations hereunder. Contractor warrants and guarantees that all such designs prepared and furnished by it shall meet all criteria for the Work and shall be suitable for the purposes for which the Work is to be used and title to such designs shall vest in and remain with SMM.
6. REPRESENTATIONS AND WARRANTIES. Contractor represents and warrants that:
6.1. it has the requisite skill, experience and personnel to fully perform the Work under the Agreement.
6.2. it has the right to enter into this Agreement and to grant the rights granted herein.
6.3. its entering into this Agreement and performance of the Work do not and will not conflict with or result in any breach or default under any other agreement to which Contractor is subject.
6.4. all personnel who will perform Work will do so at all times in a safe and workmanlike manner in accordance with all applicable Laws and best industry standards and have been properly equipped with all clothing, equipment and materials necessary to perform the Work in a safe and workmanlike manner.
6.5. all personnel who will perform Work have been properly trained and are physically and medically capable of performing the Work.
6.6. it has, to the extent permitted by law, performed a background check on all employees and Subcontractors who perform Work on SMM’s property.
6.7. none of the Work or materials (including software) used in the Work and SMM’s use thereof do infringe or will infringe any rights (including Intellectual Property Rights or Moral Rights) of any third party.
6.8. SMM will receive good and valid title to all Deliverables, free and clear of all encumbrances, security interests and liens of any kind.
7. WARRANTY. Contractor warrants all work, labor, performance of equipment and services furnished in connection with the Work for a minimum period of one year subsequent to the date of final payment, and agrees to repair, replace or make good any damages, defects or faults resulting from defective work, labor, equipment and/or services furnished in connection with the Work, or from work, labor, equipment and/or services at variance with any and all criteria specified by SMM. Contractor further warrants that all materials furnished by Contractor and any subcontractor shall conform and comply with any and all criteria specified by SMM.
8. INDEMNITY. To the fullest extent permitted by law, Contractor hereby agrees to indemnify, defend, and hold Indemnitees harmless from any and all Losses, whether or not the acts, errors, omissions or negligence of any of the Indemnitees contributed thereto, arising or allegedly arising, from or out of or relating in any way to (a) the Work, (b) any injury to, or death of, any person or persons including without limitation Contractor’s employees or subcontractor, or damage to or destruction of property or the environment, occurring wholly or in part, in connection with or resulting from the Work including without limitation any environmental condition or release of hazardous materials to the environment or by reason of any act, omission or negligence of Contractor, its employees or any subcontractor, (c) any breach or default of the Agreement by Contractor, (d) any claim that any labor, materials, design or Work of Contractor infringes a patent, Moral Rights or any other Intellectual Property Right, or (e) any injury to, or death of, any person or persons, or damage to or destruction of property, occurring wholly or in part, in connection with the operation of any motor vehicle on SMM property or otherwise by Contractor or Contractor’s employees or agents including without limitation subcontractors. This indemnity shall survive completion of the Work or termination of the Agreement for a period corresponding to the applicable statute of limitations.
9. COMPLIANCE WITH LAW. Contractor shall, at its cost, secure and maintain all Authorizations necessary in connection with the Work. Contractor shall conform in all respects to the provisions and requirements of all applicable Laws relating in any way to Contractor’s performance of the Work hereunder, including without limitation, any and all applicable federal, state and local environmental Laws, income and payroll tax regulations, immigration laws as well as any and all applicable state and federal OSHA and state/municipal standards pertaining to general safety and health and safety training and education. Contractor shall indemnify and hold the Indemnitees harmless from and against all Losses by reason of the Contractor’s failure to comply with the Laws.
10. SAFETY AND ENVIRONMENTAL.
10.1. SMM places the highest priority on, and Contractor shall be wholly responsible for, the health, safety, and security of all persons and the environment (including without limitation air (ambient and indoor), surface and ground water, and soil) related to the performance of the Work including without limitation implementation of all equipment, training, and compliance requirements related thereto. Contractor shall take all measures necessary to ensure that it provides and maintains a safe working environment and properly protects (i) all persons at, in proximity to or that may be affected by the Work from risk of injury and danger to health, and (ii) real and tangible personal property, equipment and the environment, from any Losses. Contractor represents and warrants that it has the requisite skill, training and facilities to perform the Work in compliance with this paragraph.
10.2. Contractor may perform the Work only at such times as agreed to in writing in advance by SMM. Contractor shall arrange and pay for, and not allow any of its employees or subcontractors to engage in the Work prior to successful completion and proof of the appropriate physical examinations required for compliance with state and federal OSHA. SMM shall provide the availability of a certified first aid responder to administer first aid in the event of such need related to performance of Work and an appropriate first aid supply kit.
10.3. Contractor acknowledges and agrees to the following:
10.3.1. To comply with all SMM environmental, health and safety requirements including without limitation the wearing of ANSI Approved personal protective equipment such as hard hats, safety glasses with side shields, high visibility clothing, puncture resistant safety boots with reinforced toes, and hearing protection. Certain safety requirements are dependent upon the nature of the work to be performed and must be agreed to prior to commencement of the Work. Estimated hours worked and number of employees on-site shall be provided to SMM by within five (5) days of the end of the month for injury statistics tracking purposes.
10.3.2. Contractor shall provide properly trained, qualified, fit, able and experienced personnel (including Subcontractors) to perform the Work. Upon request, Contractor shall provide SMM with a copy of its safety and training manuals along with evidence that its personnel have been properly trained, licensed, certified, fitted, and/or tested to use and operate certain equipment or to perform specific types of work as may be required. In particular, without limitation, personnel shall be qualified and trained in lockout/tagout, permit required confined space entry and equipment operation (i.e., crane authorized, crane certified or powered industrial truck authorized), as required by applicable Law in order to perform and complete the Work.
10.3.3. All tools and equipment used by Contractor must be well maintained and operated with all guards and safety features operable and in place. Defective or damaged tools and equipment shall be immediately taken out of service and removed off-site by Contractor or, at SMM’s option, by SMM at Contractor’s sole cost and expense.
10.3.4. Any employee of Contractor or any Subcontractor who does not abide by the SMM environmental, health, safety and site protocols and applicable Law shall not be allowed to proceed with the Work. SMM reserves the right to remove any employee of Contractor or any Subcontractor from the Work or any SMM Facility.
10.3.5. Contractor must have Material Safety Data Sheets (MSDS) available for any and all chemicals, including, without limitation, hazardous materials brought into an SMM Facility. Contractor shall ensure that all chemicals or hazardous materials are brought into a Facility only in amounts and types necessary for performance of the Work and are properly labeled, stored, maintained, transported and disposed of in accordance with all applicable Laws.
10.3.6. If Contractor uses or employs equipment owned by SMM, Contractor does so at its own risk and expense. Contractor shall be responsible to conduct a detailed inspection prior to utilizing SMM equipment. If any safety or maintenance concerns are identified, Contractor shall not use the equipment and shall immediately notify SMM of such conditions.
11. REPORTING. Contractor shall immediately provide written notice to SMM of any accident, occurrence or circumstance that may result in any Losses, any revocation, suspension, surrender, or denial of any required Authorization, any environmental condition, release of hazardous wastes or hazardous materials or substances to the environment or other immediate endangerment to workers, public health or the environment, or receipt of any notice from any governmental entity, related to or potentially affecting the Work hereunder, and, following consultation with and prior approval by SMM (where practicable), take appropriate measures in accordance with the Agreement and the Law to mitigate and correct the adverse impacts of such accident or other occurrence. Regarding any accident or other occurrence related to the Work resulting in any Losses, Contractor shall promptly prepare a detailed report and render all other appropriate assistance to SMM and/or its insurance carriers as may be specifically requested and approved in writing in advance by SMM. Except as required by Law, Contractor shall not undertake to report or provide notice to any federal, state or local government authority or insurance carrier concerning any of the above without SMM’s prior written approval.
12. MECHANIC’S LIENS. TO THE FULLEST EXTENT PERMITTED BY LAW, CONTRACTOR AGREES THAT IT WILL NOT FILE, OR CAUSE TO BE FILED, ANY MECHANIC’S NOTICE OF INTENTION OR STOP NOTICE OR LIEN (COLLECTIVELY “LIEN”) WITH REGARD TO OR IN CONNECTION WITH THE WORK, AND THE FILING OF SUCH LIEN(S) SHALL, AT THE OPTION OF SMM, BE DEEMED A BREACH OF THIS AGREEMENT. To the fullest extent permitted by law, Contractor shall obtain from all Subcontractors a waiver of lien in form acceptable to SMM. Prior to any partial or final payment by SMM to Contractor, Contractor agrees to furnish releases from it and all Subcontractors as well as discharges in recordable form of any Lien(s) that may have been filed in connection with the Work or the Agreement. If any Lien(s) is filed for record against the property on which Work are provided by any Subcontractor, Contractor agrees to discharge same within five (5) days after notice thereof by bonding same as required by law, or otherwise. Contractor will, at its sole cost and expense, defend any suit against SMM, its successors and assigns to enforce any Lien(s) filed in connection with Work provided under the Agreement and will indemnify SMM, its successors and assigns against Losses arising therefrom. If Contractor fails to discharge any Lien(s) within the time and as herein provided, SMM may discharge or pay the same, and all costs incurred by SMM in connection therewith, including attorneys’ fees, shall be paid by Contractor to SMM on demand, or, at SMM’s option, deducted by SMM from any payments due, or to become due, to Contractor.
13. CONFIDENTIALITY. Contractor shall, and shall ensure that its employees and Subcontractors: (a) keep all Confidential Information received, whether in writing, orally or by inspection, and all information and evaluations derived from such Confidential Information, in strict confidence using the same care and caution it affords its own confidential information, but no less than a reasonable degree of care; (b) use Confidential Information only in connection with the Work under the Agreement; (c) reproduce Confidential Information only to the extent necessary and as permitted by the Agreement; and (d) not disclose any Confidential Information to any third party without prior written consent of SMM. The obligations of confidentiality set forth in the preceding sentence shall not apply to any such Confidential Information which is required to be disclosed by operation of law (e.g. subpoena), in which event Contractor shall provide SMM with prompt notice thereof, consult with SMM regarding the proper response to such requirement, assist SMM in seeking appropriate steps to implement such response and/or protect the confidentiality of such Confidential Information, and only disclose the minimum amount of Confidential Information legally required.
14. NO TRANSFER OF RIGHTS. All information or data that is disclosed or provided by SMM to Contractor or Subcontractors will remain the property of SMM (including all Intellectual Property Rights in such information or data and any derivatives thereof). Contractor will in no way have any lien or rights, legal or otherwise, over such information or data and, at no point during or after termination of the Agreement for any reason, will Contractor be entitled to withhold any information or data disclosed or provided by SMM.
15. RETURN OF INFORMATION. At the request of SMM, Contractor will be obliged to return all information or data, including Confidential Information, immediately that has been disclosed or provided to it by SMM. If, by agreement with SMM, the return is deemed not possible or impractical, Contractor will be obliged to delete any such information or data from its systems. Within sixty (60) days of the expiry or termination of the Agreement for any reason, Contractor will return or, upon agreement with SMM, delete all such information or data and certify to SMM that all such information or data has been returned or deleted, as applicable.
16. PAYMENT AND INVOICING.
16.1. The price for the Work will be the price(s) agreed to in writing in advance of any Work in an SOW and is inclusive of any value added tax or other applicable excise, sales taxes and/or duties. Unless otherwise agreed to in writing by the parties, SMM has no obligation or liability to pay or reimburse any other fees, taxes, or other amounts for the Work unless required by Law.
16.2. Contractor acknowledges and agrees that payment of an invoice constitutes Contractor’s entire remuneration for its performance of the Work under the Agreement. Contractor will not be reimbursed for any additional charges or expenses of any kind without the prior written approval of an authorized SMM representative.
16.3. Unless otherwise specified in an SOW, Contractor shall issue invoices to SMM monthly in arrears for Work performed in the immediately preceding month. Invoices will contain at minimum the following: date of invoice, invoice number, period to which the invoice relates, a description of the services to which the invoice relates. Invoices will be sent to SMM at the address as may be notified by SMM to Contractor from time to time.
16.4. SMM shall pay any uncontested amounts within sixty (60) days of receipt of an invoice. If SMM contests any part of an invoice, SMM shall endeavor to provide a written statement to Contractor prior to the date payment is due providing a reasonably detailed description of the contested amounts. Partial payment shall be considered notice from SMM that it contests the unpaid amount. The Parties shall engage in good faith efforts to resolve the contested amounts. SMM is not obligated to pay any invoice received more than one hundred twenty (120) days after the invoice was due.
17. RIGHT TO SET OFF. Without prejudice to any other right or remedy it may have, SMM will be entitled to set-off any monetary obligation which Contractor has to SMM against any monetary obligation which SMM has to Contractor, whether such monetary obligation is present or future, liquidated or unliquidated, under the Agreement, an SOW, or any other agreement between the parties or other cause of action and irrespective of the currency of its denomination.
18. DEFAULT. In the event Contractor should (a) neglect or fail to diligently perform the Work as provided under the Agreement, (b) fail to perform or comply with any provisions of the Agreement, or (c) be adjudged bankrupt, or become insolvent, or have any petition under the Bankruptcy Act of the United States filed against it, or make an assignment for the benefit of creditors, or have a receiver of its property appointed, or have its property pass into the hands of legal representatives, Contractor shall be deemed in default of the Agreement. If such default shall continue for twenty-four (24) hours after written notice thereof to Contractor (except in the case of subparagraph (c) above in which no notice need be given), SMM shall have the right to terminate the Work and the Agreement immediately. In the event of termination by SMM as a result of a default by Contractor, SMM may contract with any other entity or person(s) to complete the Work and Contractor shall be entitled to no further payment under the Agreement. Any and all costs and expenses incurred by SMM in connection with or as a result of termination of the Agreement that exceed any accrued but unpaid monies due Contractor shall be immediately due and payable by Contractor with interest thereon to accrue from the date of termination at the lesser of ten percent (10%) per annum or the maximum allowable by law.
19. TERMINATION AND SUSPENSION. SMM reserves the right to terminate the Agreement or any SOW, for convenience and without liability, in whole or in part, upon ten (10) days’ written notice. Once such notice has been given, Contractor shall, except as and to the extent directed by SMM, discontinue performance under the Agreement or the specified SOW. SMM shall not be liable for any amounts or expenses incurred by Contractor in connection with the termination of any subcontracts entered into by Contractor in connection with and prior to the termination of the Agreement. In the event of termination of the Agreement under this paragraph, SMM shall pay Contractor only for the Work acceptably performed prior to termination but not yet paid for. SMM may, at its sole discretion, by written notice to Contractor, suspend at any time the performance of all or any portion of the Work. Contractor shall immediately discontinue performing the Work suspended on the date and to the extent specified in the notice.
20. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, SMM’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT, INCLUDING ANY SOW, 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 LESSER OF: (I) USD$10,000 (TEN THOUSAND) OR (II) THE AGGREGATE PRICE PAID FOR THE WORK PERFORMED BY CONTRACTOR DURING THE TWELVE MONTHS PRIOR TO A CLAIM ARISING. SMM DOES NOT EXCLUDE OR LIMIT ITS LIABILITY (IF ANY) FOR ANY MATTER FOR WHICH IT WOULD BE ILLEGAL FOR SMM TO EXCLUDE, LIMIT, OR ATTEMPT TO EXCLUDE OR LIMIT ITS LIABILITY. IN NO EVENT SHALL SMM BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DELAY DAMAGES, LOST OPPORTUNITY DAMAGES, LOST PROFITS, LOSS OR CORRUPTION OF DATA, OR LOSS OF GOODWILL HOWSOEVER CAUSED REGARDLESS OF WHETHER IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
21. FORCE MAJEURE. Neither SMM nor Contractor shall be liable for failure to perform its obligations under the Agreement by reason of a Force Majeure Event. Contractor’s inability to supply personnel or equipment necessary to perform the Work or to secure or renew necessary Authorizations shall not be considered a Force Majeure Event, unless Contractor’s inability to supply personnel or equipment necessary to perform the Work is the result of a Force Majeure Event.
22. INDEPENDENT CONTRACTOR. Contractor agrees that it is an independent contractor and that SMM shall not control the manner or means by which Contractor or Contractor’s employees or subcontractors perform the Work. Contractor has no right or authority in any way to bind, obligate or make agreements for SMM in its capacity as contractor of SMM without the prior written consent of SMM. Contractor shall be solely responsible to SMM for the acts and omissions of its employees and any subcontractor, and for their acts, omissions, compensation, benefits, contributions, employment taxes and insurance related to the Work, if any. SMM will not be responsible for withholding, paying or contributing toward any income, payroll, Social Security, or other federal, state, or local taxes; making any insurance contributions, including for unemployment or disability; or obtaining workers’ compensation insurance on Contractor’s behalf. Contractor shall be responsible for, and shall indemnify SMM against, all expenses or Losses (including attorney’s fees) relating to claims or demands concerning such taxes or contributions, including penalties and interest. Contractor shall be fully responsible for any persons performing Work under the Agreement (including any SOW) and shall indemnify SMM against all expenses or losses (including attorney’s fees) related to claims made by or on behalf of any such person against SMM.
23. ASSIGNMENTS, SUBCONTRACTS AND TRANSFERS. Contractor shall not assign or transfer, in whole or part, any rights, duties, or obligations under the Agreement, nor shall Contractor subcontract any part of the Work to be performed, without SMM’s prior written consent. Any assignment or subcontract without SMM’s prior written consent shall be void. Contractor shall provide SMM with copies of any proposed subcontract when seeking SMM’s written consent thereto. SMM may freely assign its rights or delegate its duties under the Agreement. Notwithstanding, if Contractor does subcontract, assign or transfer any part of its rights or obligations under the Agreement, Contractor shall remain liable for such obligations under the Agreement and will be fully responsible for any failure by its subcontractor, assignee or transferee to observe the terms and conditions of the Agreement to the same extent as if such acts or omissions were performed by Contractor.
24. SEVERABILITY. If a court of competent jurisdiction determines that any provision of the Agreement is void or unenforceable, the court will sever that provision and replace it with an enforceable provision that as near as possible preserves and reflects the Parties’ original intent, and the remainder of the Agreement will otherwise remain in full force and effect.
25. AMENDMENT. No amendment of the Agreement will be valid unless in writing signed by an authorized representative of each Party.
26. NO WAIVER. Any failure or delay by SMM in exercising any right, power or remedy will not in any circumstances impair such right, power or remedy nor operate as a waiver of it. The single or partial exercise by SMM of any right, power or remedy will not in any circumstances preclude any other or further exercise of it, or the exercise of any right, power or remedy. The rights, powers and remedies provided in the Agreement are cumulative and not exclusive of any rights, powers and remedies provided by law or equity. Any waiver of a breach of, or default under, any of the terms of the Agreement will not be deemed a waiver of any subsequent breach or default and will in no way affect the other terms of the Agreement.
27. SURVIVAL. Those provisions that by their nature are intended to survive termination or expiration of the Agreement shall so survive. This includes, but is not limited to, insurance requirements and the provisions of Section 4 (Clean Up), Section 6 (Representations and Warranties), Section 7 (Warranty), Section 8 (Indemnity), Section 13 (Confidentiality), Section 17 (Right to Set Off), Section 20 (Limitation of Liability), Section 23 (Assignments, Subcontracts, and Transfers), Section 24 (Severability), Section 25 (Amendment), Section 26 (No Waiver), and Section 29 (Miscellaneous).
28. TIME IS OF THE ESSENCE. Contractor acknowledges that time is of the essence with respect to Contractor’s obligations hereunder and that prompt and timely performance of all Work and other requirements in this Agreement and each Statement of Work, including all deadlines set forth therein, is strictly required.
29. MISCELLANEOUS.
29.1. The Agreement, together with any schedules, exhibits, or SOWs, represents the entire agreement of the Parties to the exclusion of any additional terms and conditions, including Contractor’s standard terms and conditions, and supersedes any prior or contemporaneous understandings, agreements or warranties (oral or written) concerning the subject matter thereof. Any additional or conflicting terms in any of Contractor’s documents (e.g. proposal, invoice, etc.) are expressly rejected. Contractor specifically acknowledges and agrees that it did not enter into the Agreement in reliance upon any agreement, promise, representation, or understanding made by or on behalf of SMM that is not contained herein.
29.2. The Agreement is binding upon and shall inure to the benefit of SMM and Contractor and to their respective heirs, successors and assigns.
29.3. Each party warrants and represents to the other that it has the absolute and unrestricted right, authority, power and capacity to enter into and be bound by the Agreement and to perform its obligations hereunder and that the performance under the Agreement will not conflict with or result in any breach of, or constitute a default under, any material instrument, agreement or undertaking by which said Party or any of its property is bound and that each individual executing, attesting and/or delivering the Agreement on its behalf is authorized to do so on behalf of such Party.
29.4. No provision in the Agreement is intended or shall create any rights with respect to the subject matter thereof in any third party.
29.5. Headings are for reference only and do not affect interpretation.
ENGINEERING CONSULTATION SERVICES TERMS AND CONDITIONS
If Contractor is performing Engineering Consultation Services, the following Engineering Consultation Services Terms and Conditions shall apply in addition to the General Terms and Conditions above. In the event of a conflict between the Engineering Consultation Services Terms and Conditions and the General Terms and Conditions above, the Engineering Consultation Services Terms and Conditions shall control:
1. DEFINITIONS.
“Engineering Consultation Services” means professional consulting services in the area of engineering as specifically provided in an SOW.
“Engineering Consultation Services Terms and Conditions” means these Engineering Consultation Services-specific additional terms and conditions.
“SMM Materials” means any documents, specifications, data, know how, methodologies, software, and other materials provided to Contractor by SMM.
“Work Product” means all Deliverables and all other writings, technology, inventions, discoveries, processes, techniques, methods, ideas, concepts, research, proposals, improvements, materials, and all other work product of any nature whatsoever, that is created, prepared, produced, authored, edited, modified, conceived, improved upon, or reduced to practice in the course of performing the Work or other work performed in connection with the Work or this Agreement.
2. PERFORMANCE OF WORK.
2.1 SMM shall not control the manner or means by which Contractor or Contractor’s employees or contractors perform the Work. Unless otherwise set forth in an SOW, Contractor shall furnish, at Contractor’s own expense, the equipment, supplies, and other materials used to perform the Work. SMM shall provide Contractor with access to its Facilities to the extent necessary for the performance of the Work.
2.2 To the extent Contractor perform any Work on SMM’s Facilities, Contractor shall comply with all applicable policies of SMM relating to business and office conduct, health and safety, and use of SMM’s Facilities, supplies, information technology, equipment, networks, and other resources and comply with all applicable laws.
2.3 Contractor shall make all Work Product available to SMM throughout the engagement and as requested by SMM.
3. PAYMENT AND EXPENSES.
3.1 As full compensation for the Work and the rights granted to SMM in this Agreement, SMM shall pay Contractor according to an SOW payable on completion of the Work to SMM’s satisfaction. Contractor acknowledges that Contractor will receive an IRS Form 1099-MISC from SMM, and that Contractor shall be solely responsible for all federal, state, and local taxes.
3.2 Contractor is solely responsible for any travel or other costs or expenses incurred by Contractor in connection with the performance of the Work, and in no event shall SMM reimburse Contractor for any such costs or expenses.
4. RELATIONSHIP OF THE PARTIES.
4.1 CONTRACTOR IS AN INDEPENDENT CONTRACTOR OF SMM, AND THIS AGREEMENT SHALL NOT BE CONSTRUED TO CREATE ANY ASSOCIATION, PARTNERSHIP, JOINT VENTURE, EMPLOYEE, OR AGENCY RELATIONSHIP BETWEEN CONTRACTOR AND SMM FOR ANY PURPOSE. Contractor has no authority (and shall not hold itself out as having authority) to bind SMM and Contractor shall not make any agreements or representations on SMM’s behalf without SMM’s prior written consent.
4.2 Without limiting Section 4.1, Contractor will not be eligible to participate in any vacation, group medical or life insurance, disability, profit sharing or retirement benefits, or any other fringe benefits or benefit plans offered by SMM to its employees, and SMM will not be responsible for withholding or paying any income, payroll, Social Security, or other federal, state, or local taxes, making any insurance contributions, including for unemployment or disability, or obtaining workers’ compensation insurance on Contractor’s behalf. Contractor shall be responsible for, and shall indemnify SMM against, all such taxes or contributions, including penalties and interest. Any persons employed or engaged by Contractor in connection with the performance of the Work shall be Contractor’s employees or contractors and Contractor shall be fully responsible for them and indemnify SMM against any claims made by or on behalf of any such employee or contractor.
4.3 Nothing in this Agreement obligates SMM to deal exclusively with Contractor.
5. INTELLECTUAL PROPERTY RIGHTS.
5.1 SMM is and shall be, the sole and exclusive owner of all right, title, and interest throughout the world in and to all Deliverables, and all other Work Product including all Intellectual Property Rights therein. Contractor agrees that the Work Product is hereby deemed a “work made for hire” as defined in 17 U.S.C. § 101 for SMM. If, for any reason, any Work Product does not constitute a “work made for hire,” Contractor hereby irrevocably assigns to SMM, in each case without additional consideration, all right, title, and interest throughout the world in and to the Work Product, including all Intellectual Property Rights therein, including the right to sue for past, present, and future infringement, misappropriation, or dilution thereof.
5.2 Any assignment of copyrights under this Agreement includes all Moral Rights. Contractor hereby irrevocably waives, to the extent permitted by applicable law, any and all claims Contractor may now or hereafter have in any jurisdiction to any Moral Rights with respect to the Work Product.
5.3 Contractor shall make full and prompt disclosure to SMM of any inventions or processes, as such terms are defined in 35 U.S.C. § 100 (“Patent Act”), made or conceived by Contractor alone or with others during the Term, related in any way to the Work described herein, whether or not such inventions or processes are patentable or protected as trade secrets and whether or not such inventions or processes are made or conceived during normal working hours or on the premises of SMM. Contractor shall not disclose to any third party the nature or details of any such inventions or processes without the prior written consent of SMM. Any patent or copyright applications relating to the Work, related to trade secrets of SMM or which relate to tasks assigned to Contractor by SMM, that you may file at any time, shall belong to SMM, and Contractor hereby assigns same to SMM, for no additional consideration, as having been conceived or reduced to practice during the Term of this Agreement.
5.4 Upon the request of SMM, Contractor shall promptly take such further actions, including execution and delivery of all appropriate instruments of conveyance, and provide such further cooperation as may be necessary to assist SMM to prosecute, register, perfect, record, or enforce its rights in any Work Product. In the event SMM is unable, after reasonable effort, to obtain Contractor’s signature on any such documents, Contractor hereby irrevocably designates and appoints SMM as Contractor’s agent and attorney-in-fact, to act for and on Contractor’s behalf solely to execute and file any such application or other document and do all other lawfully permitted acts to further the prosecution and issuance of patents, copyrights, or other intellectual property protection related to the Work Product with the same legal force and effect as if Contractor had executed them. Contractor agrees that this power of attorney is coupled with an interest.
5.5 Notwithstanding Section 5.1, to the extent that any of Contractor’s pre-existing materials are incorporated in or combined with any Deliverable (or otherwise necessary for the use or exploitation of any Work Product), Contractor hereby grants to SMM an irrevocable, worldwide, perpetual, royalty free, non-exclusive license to use, publish, reproduce, perform, display, distribute copies of, prepare derivative works based upon, make, have made, sell, offer to sell, import, and otherwise exploit such preexisting materials and derivative works thereof. SMM may assign, transfer and sublicense (through multiple tiers) such rights to others without Contractor’s approval.
5.6 As between Contractor and SMM, SMM is, and will remain, the sole and exclusive owner of all right, title, and interest in and to any SMM Materials, including all Intellectual Property Rights therein. Contractor has no right or license to use, publish, reproduce, prepare derivative works based upon, distribute, perform, or display any SMM Materials except solely during the Term to the extent pre-approved by SMM. All other rights in and to SMM materials are expressly reserved by SMM. Contractor has no right or license to use SMM’s trademarks, service marks, trade names, logos, symbols, or brand names.
5.7 Contractor shall require each of Contractor’s employees and contractors to execute written agreements securing for SMM the rights provided for in this Section 5 prior to such employee or contractor providing any Work under this Agreement.
6. CONFIDENTIALITY.
6.1 Any Confidential Information that Contractor develops in connection with the Work, including but not limited to any Work Product, shall be subject to the terms and conditions of the Agreement and this clause. Contractor shall notify SMM immediately in the event Contractor becomes aware of any loss or unauthorized disclosure of any Confidential Information.
7. REPRESENTATIONS AND WARRANTIES.
7.1 Contractor represents and warrants to SMM that:
7.1.1 Contractor holds and will maintain all required Authorizations to perform the Work.
7.1.2 SMM will receive good and valid title to all Work Product, free and clear of all encumbrances and liens of any kind; and
7.1.3 all Work Product, unless explicitly authorized by SMM in writing, is and shall be Contractor’s original work (except for material in the public domain or provided by SMM) and does not and will not violate or infringe upon the Intellectual Property Rights, Moral Rights, or any other right whatsoever of any person, firm, corporation, or other entity.
7.1.4 it understands that SMM intends to rely on the information contained in the Work Product and any Deliverables furnished to SMM and as such warrants that such information is accurate, complete, and adequate and SMM may rely on such information without independent verification.
8. TERMINATION.
8.1 Notwithstanding Section 19 of the General Terms and Conditions (Termination and Suspension), SMM may terminate this Agreement with or without cause immediately upon written notice to Contractor. In the event of termination pursuant to this clause, SMM shall pay Contractor on a pro-rata basis any payments then due and payable for any Work completed to SMM’s satisfaction up to and including the date of such termination.
8.2 Contractor or SMM may terminate this Agreement effective immediately upon written notice to the other party to this Agreement, if the other party materially breaches this Agreement and such breach is incapable of cure, or with respect to a breach capable of cure, the other party does not cure such breach within 5 calendar days after receipt of written notice of such breach.
8.3 Upon expiration or termination of this Agreement for any reason, or at any other time upon SMM’s written request, Contractor shall promptly:
8.3.1 deliver to SMM all Work Product (whether complete or incomplete) and all hardware, software, tools, equipment, or other materials provided for Contractor’s use by SMM;
8.3.2 deliver to SMM all tangible documents and materials (and any copies) containing, reflecting, incorporating, or based on the Confidential Information;
8.3.3 permanently erase all of the Confidential Information from Contractor’s computer systems; and
8.3.4 certify in writing to SMM that Contractor has complied with the requirements of this clause.
9. OTHER BUSINESS ACTIVITIES. Contractor may be engaged or employed in any other business, trade, profession, or other activity which does not place Contractor in a conflict of interest with SMM; provided, that, during the Term, Contractor shall not be engaged in any business activities that do or may compete with the business of SMM without the written consent of SMM’s legal team to be given or withheld in its sole discretion.
10. NON-SOLICITATION. Contractor agrees that during the Term of this Agreement and for a period of twelve (12) months following the termination or expiration of this Agreement, Contractor shall not solicit, directly or indirectly, any SMM personnel for employment without written consent of SMM to be given or withheld in SMM’s sole discretion. For the purposes of this clause, a general advertisement or notice of a job listing or opening or other similar general publication of a job search or availability to fill employment positions, including on the internet, shall not be construed as a solicitation or inducement, and the hiring of any such employees who freely responds thereto shall not be a breach of this clause.
HOT WORK TERMS AND CONDITIONS
If Contractor is performing Hot Work, the following Hot Work Terms and Conditions shall apply, in addition to the General Terms and Conditions above. In the event of a conflict between the Hot Work Terms and Conditions and the General Terms and Conditions, the Hot Work Terms and Conditions shall control:
1. DEFINITIONS.
“Cut Grade Goods” means #1 heavy melt miscellaneous ferrous scrap metal ¼ inch thickness and over.
“Designated Area” means a permanent location designed for or approved by Contractor for the regular performance of Hot Work.
“Hot Work” means any fire or spark-producing operation and includes, without limitation, welding, brazing, soldering, all types of torch work, use of hot tar kettles for roofing or asphalt repair, and cutting or grinding metal.
“Hot Work Permit” means a document issued by the Hot Work Permit Coordinator for the purpose of authorizing a specified activity in a non-Designated Area.
“Hot Work Permit Coordinator” means a competent individual of sufficient technical knowledge, training, and practical experience in Hot Work, its processes, and hazards appointed by Contractor to supervise the operation of Hot Work, including communicating to SMM details concerning all scheduled Hot Work, inspecting work areas where Hot Work is to be performed, issuing Hot Work Permits, providing copies of Hot Work Permits to SMM, and ensuring that Hot Work is performed in a safe manner.
“Hot Work Safety Plan” means a written safety plan maintained, implemented and followed by Contractor and all subcontractors of Contractor who perform Hot Work for SMM containing at a minimum the safety procedures set forth in Section 2 (Hot Work Safety) below.
“Hot Work Terms and Conditions” means these Hot Work-specific additional terms and conditions.
2. HOT WORK SAFETY. Contractor must ensure that all Hot Work is performed in conformance with OSHA (including 29 CFR 1910 subpart Q) and NFPA 51B at minimum. Hot Work is permitted only in areas that are or have been made fire safe. Hot Work equipment shall be in good working condition and fully inspected. Prior to engaging in any Hot Work, Contractor must provide MM with a copy of each of the following documents, prepared in accordance with the requirements of Law (including any Laws promulgated by OSHA) and this Agreement (a) Contractor’s Lead Safety & Compliance Plan (if such document is required by Law); and (b) Contractor’s Hot Work Safety Plan. Further, Contractor must, and ensure that its subcontractors, maintain, implement, and at all times follow the Hot Work Safety Plan, which must include at least the following:
2.1 All individuals performing Hot Work must complete proper Hot Work training prior to conducting any Hot Work.
2.2 Identification of all required personal protective equipment (“PPE”) to be used during Hot Work and instructions regarding proper use of such PPE.
2.3 A fully charged portable fire extinguisher located at each Hot Work unit (e.g. welding gas cart, arc welder generator, hot tar kettle).
2.4 All equipment inspected for defects or damage prior to each use.
2.5 Use of only approved apparatus, such as torches, manifolds, regulators and pressure reducing valves.
2.6 Floors where Hot Work is performed swept clean of combustibles for a radius of 35 feet prior to commencing Hot Work.
2.7 Combustible floors wet down, covered with damp sand or fire-resistive sheets prior to commencing Hot Work and as necessary during such work.
2.8 Flammable or combustible liquids removed from work area (at least 35 feet horizontally from the work area) with any other combustibles not removed protected with fire-resistive tarpaulins or metal shields.
2.9 Openings or cracks in walls, floors, or ducts within 35 feet of the work area shall be tightly covered to prevent the passage of sparks to adjacent areas
2.10 Explosive atmosphere in area eliminated prior to commencing Hot Work and as necessary during such work.
2.11 Ensure sufficient local exhaust ventilation is provided to prevent accumulation of any smoke and fumes.
2.12 All wall and floor openings covered.
2.13 Fire-resistive tarpaulins suspended beneath work.
2.14 Ensure that any sprinkler system in a sprinklered building is operational prior to commencing Hot Work.
2.15 If Hot Work is performed on a wall, all combustibles on the other side of the wall must be relocated.
2.16 Welding shall not be attempted on a metal partition, wall, ceiling, or roof having a combustible covering. Oil-based paints and epoxies shall be no closer than three feet in any direction.
2.17 If Hot Work is performed on enclosed equipment, the enclosed equipment to be cleaned of all combustibles and containers purged of flammable liquids prior to commencing Hot Work.
2.18 Fire watch provided during and for at least sixty (60) minutes after work, and during any coffee or lunch breaks.
2.19 Fire watch supplied with suitable extinguishers or charged small hoses.
2.20 Fire watch trained in use of this equipment and in sounding alarm.
3. HOT WORK PERMITS. Hot Work shall not be performed outside of a Designated Area without a properly issued Hot Work Permit, which must be posted at the work area at all times. Hot Work Permits may only be issued by the Hot Work Permit Coordinator. A Hot Work Permit is valid only for one day unless otherwise approved by SMM in writing. Contractor shall retain copies of all Hot Work Permits for a period of at least two (2) years.
4. HOT WORK PERMIT COORDINATOR. Prior to beginning Hot Work, Contractor shall appoint a Hot Work Permit Coordinator who will be responsible for the safe operation of all Hot Work under his supervision. The Hot Work Permit Coordinator shall not be a Hot Work operator. The Hot Work Permit Coordinator’s responsibilities will include, but are not limited to:
4.1 ensuring Hot Work is identified and performed in accordance with the Agreement and the Hot Work Safety Plan;
4.2 performing a hazard assessment of the scheduled Hot Work and the work area, as needed, to establish controls and fire watch requirements;
4.3 notifying SMM of scheduled Hot Work;
4.4 obtaining any alarm system bypass that may be necessary and ensuring such alarm system is reactivated upon completion of Hot Work;
4.5 making sure that persons who will perform Hot Work have read and understand the Hot Work Safety Plan;
4.6 assuring that persons who will perform Hot Work have demonstrated competency in the use of Hot Work equipment and are trained in performing Hot Work;
4.7 ensuring that high energy sources are isolated as needed in accordance with SMM lockout/tagout policies;
4.8 approving Hot Work Permits; and
4.9 submitting copies of all Hot Work Permits to SMM.
5. BYSTANDER PROTECTION. Contractor must protect bystanders from Hot Work hazards including without limitation welding fumes and UV radiation hazards to their eyes by without limitation ensuring adequate ventilation and providing welding screens around arc and torch welding operations.
6. EMERGENCY NOTIFICATION PROCEDURES. Contractors must educate themselves of all site-specific emergency notification procedures in the event of an accident or incident involving fire protection systems, or in the event of fire.
7. PHYSICAL EXAMINATIONS. Contractor shall arrange and pay for, and not allow any of its employees or subcontractors to engage in any Hot Work prior to successful completion and proof of the appropriate physical examinations (including all required blood lead and cadmium level testing) required for compliance with OSHA requirements and applicable Laws.
8. TORCH CUTTING. Any Contractor performing torch-cutting Work shall, in addition to the other requirements of the Hot Work Terms and Conditions:
8.1 Direct and engage in the placement of the prepared Cut Grade Goods at the torch field, ensuring that such unprepared Cut Grade Goods are appropriately placed for the safe and efficient engagement in torch-cutting Work;
8.2 Inspect unprepared Cut Grade Goods prior to torch-cutting for presence of hazardous materials and fluids understanding that suppliers may have inadvertently failed to remove certain hazardous materials or drain certain fluids from such goods even though SMM requires that the supplier remove such hazardous materials and fluids prior to delivery to an SMM Facility.
8.3 In the event Contractor suspects or identifies any hazardous materials in such unprepared Cut Grade Goods, Contractor shall set aside such Cut Grade Goods (if this can be done safely) and notify SMM, whereby Contractor shall not torch-cut any Cut Grade Goods containing any hazardous materials (except for incidental levels of hazardous materials incorporated into the composition of the metal portion of such Cut Grade Goods);
8.4 In the event Contractor identifies any fluids in such unprepared Cut Grade Goods, Contractor shall set aside such Cut Grade Goods and notify SMM, and properly drain such fluids (if qualified, and it can be done safely and if allowed by Law), whereby Contractor shall not torch-cut any Cut Grade Goods unless the fluids first have been drained from such Cut Grade Goods;
8.5 At locations within a Sims Facility as designated from time-to-time by SMM, prepare by oxygen-propane cutting those certain Cut Grade Goods as designated from time-to-time by SMM, into prepared sections of various dimensions, of sufficiently flat shape to meet the acceptable weight per cubic foot requirements for each truck load for shipment out and to a size and shape acceptable at a standard electric arc furnace steel mill for remelting;
8.6 If provided for in any SOW, if allowed by Law, and if Contractor is properly qualified and has the proper equipment, load prepared Cut Grade Goods onto trucks provided by SMM in order to provide load weights acceptable to SMM for each truck;
8.7 Be present at the weighing of such prepared Cut Grade Goods;
8.8 If provided for in an SOW, if allowed by Law, and if Contractor is properly qualified and has the proper equipment, at a minimum, clear the torch field of torch-cut prepared Cut Grade Goods every other day to avoid congestion;
8.9 Perform all other activities necessary for performance of the Work, including engaging in appropriate supervision; health, safety, environment, and community (“SHEC”) management; and, as requested from time to time by Company, the sortation of non-ferrous goods from Cut Grade Goods.
MARINE SERVICES TERMS AND CONDITIONS
If Contractor is performing Marine Services, the following Marine Services Terms and Conditions shall apply in addition to the General Terms and Conditions above. In the event of a conflict between the Marine Services Terms and Conditions and the General Terms and Conditions above, the Marine Services Terms and Conditions shall control:
1. DEFINITIONS.
“Marine Safety Program” means a written safety plan maintained, implemented and followed by Contractor and all subcontractors of Contractor who perform Hot Work for SMM containing at a minimum the safety procedures set forth in Section 2 (Hot Work Safety) below.
“Marine Services” means any Work performed on or by a Vessel on or under the water, whether within, adjacent to or distant from any port, harbor, or berth (collectively “At Sea”), and includes without limitation tug/towing, salvaging, underwater construction, underwater cable laying, water taxiing, diving/scuba services, waterborne rescue services, mooring, dredging, hauling, launching, dry-docking, waterborne deliveries, harbor-mastering, Vessel traffic services, on-water repairs or refitting, piloting, sailing, and cargo transporting.
“Marine Services Terms and Conditions” means these Marine Services-specific additional terms and conditions.
“Vessel(s)” means any craft and/or motor vehicle designed for transportation on or under water, including but not limited to ships, boats, barges, rafts, scuba equipment, submarines, dry cargo ships, bulk carriers, general cargo vessels, container vessels, reefer vessels, ro-ro vessels, ropax vessels, liquid cargo ships, crude carriers, tug boats, and pilot boats.
2. SAFETY. Contractor must ensure that all of the Work is performed in conformance with OSHA Parts 1915, 1917 and 1918 at minimum. Additionally, Contractor must, and ensure that its Subcontractors, maintain, implement, and at all times follow a written Marine Safety Program that includes at least the following:
2.1 All individuals performing the Work must complete proper Marine Services training prior to conducting any Work.
2.2 Identification of all required personal protective equipment (“PPE”) to be used during Work and instructions regarding proper use of such PPE.
2.3 An approved lifejacket or personal flotation device must be carried for each person on board each Vessel and must be in good condition and properly serviced.
2.4 Except in those cases where the lifejacket or personal flotation device directly prevents or impedes the Work (such as during diving, scuba or underwater operations) the lifejacket or personal flotation device must be worn at all times during the performance of the Work.
2.5 All people-bearing Vessels must carry at least one Coast Guard approved fire extinguisher unless a fixed fire extinguishing system is installed in the Vessel.
2.6 All people-bearing Vessels must carry an electric torch or lighted lantern showing a white light which shall be exhibited in sufficient time to prevent collision.
2.7 All people-bearing Vessels must carry a whistle or bell, or some other means of making an efficient sound signal.
2.8 All Vessels must be equipped with all legally required navigation lights, sound systems, and flotation devices.
3. GUARANTEES. Contractor warrants that: (i) it possesses all Authorizations required for the Work; (ii) it shall tender any Vessel used for the Work at the starting port/place and at the date and time identified in the relevant SOW, in a seaworthy condition, properly equipped, documented, with all legally required navigational lights, navigation equipment and emergency equipment and shall be properly trimmed to safely complete any anticipated voyage; (iii) it shall use best efforts to prosecute the contemplated Work with due dispatch; (iv) it shall comply with the arrival and departure times set forth in the relevant SOW; (v) any Vessel it supplies shall be capable of performing the Work at such speeds as would be considered normal for comparable services; and (vi) it has informed SMM of any special circumstances or conditions applicable to the Work which may affect the performance of Work under this Agreement.
4. LIBERTY AND SALVAGE. Contractor shall be at liberty to go to the assistance of other Vessels in distress in attempt to save life At Sea. In circumstances where there is no risk of loss of life, at SMM’s sole discretion, SMM may prohibit or require Contractor to go to the assistance of other Vessels At Sea to save property or cargo. Contractor may load, discharge, engage or disengage persons, call at any port/place for fuel, repairs, supplies or other necessaries if reasonably required for safe completion of voyage. In no event shall Contractor abandon SMM’s cargo, personnel, or Vessel while providing assistance to third parties. SMM and Contractor shall each have rights to a 50% (fifty percent) share in any salvage award recovered during performance of the Work.
5. GENERAL AVERAGE PRECLUSION. SMM’s Vessel(s), Contractor’s Vessel(s), SMM, and Contractor, shall be deemed separate interests not engaged in a common adventure and do not equally share any losses resulting from a voluntary sacrifice of part of a Vessel or cargo to save the whole in an emergency.
6. MARITIME LIENS. TO THE FULLEST EXTENT PERMITTED BY LAW, CONTRACTOR AGREES THAT IT WILL NOT FILE, OR CAUSE TO BE FILED, ANY MARITIME LIEN WITH REGARD TO OR IN CONNECTION WITH THE WORK, AND THE FILING OF SUCH LIEN(S) SHALL, AT THE OPTION OF SMM, BE DEEMED A BREACH OF THIS AGREEMENT. As used herein “Maritime Lien” includes but is not limited to all: (i) Seafarers’ liens for wages, maintenance, and cure; (ii) Salvage liens; (iii) Tort liens, i.e. liens from maritime accidents such as collisions or damage to cargo; (iv) Preferred ship mortgages recorded with the U.S. Coast Guard under the Preferred Ship Mortgage Act; and (v) Liens for “necessaries” furnished to a vessel such as food, fuel, and repairs. Contractor shall not take any action to arrest any SMM Vessel pursuant to an in rem action. For the purposes of these Marine Services Terms and Conditions, the definition of Lien from the General Terms and Conditions shall also include Maritime Liens.
7. MARINE POLLUTION INDEMNITY. Contractor shall assume all liability for and defend, indemnify and hold SMM harmless from all Losses arising out of or relating in any way to pollution or contamination emanating from Contractor’s performance of the Work. Contractor shall take such steps as are reasonably necessary to ensure that the disposal of all substances, articles or liquids, including without limitation oils, bilge water, and wastes, emanating from Contractor’s performance of the Work, is carried out in such manner as not to cause pollution or contamination of the waters or shore. In the event of any breach of this obligation Contractor shall protect, indemnify and hold SMM harmless from all resulting Losses. Contractor shall impose a similar condition on any Subcontractor retained by Contractor to perform any part of the Work.