GT Purchase Terms
STANDARD TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS
BACKGROUND
(A) Company is part of Sims Metal Management, a leading global recycler of ferrous and non-ferrous metals.
(B) Seller wishes to sell to Company, and Company wishes to purchase from Seller, certain ferrous and/or non-ferrous materials on the terms and conditions as set out herein.
1. INTERPRETATION
In these standard terms and conditions:
1.1 the following words and expressions will have the following meanings unless the context otherwise requires:
“Company” means Sims Global Commodities Pte Ltd and any of its trading names with which Company contracts;
“Duly Authorised Representative” means (i) the representatives of Company as outlined in the Purchase Contract who are authorised to enter into a binding contract for the sale of Goods with Seller or (ii) any statutory officer of Company;
“Goods” means any goods which Seller agrees to supply to Company (including any of them or any part of them);
“Insolvent” means in respect of either party:
a) that party passing a resolution for its winding up, or a court of competent jurisdiction making an order for it to be wound up or dissolved or that party being otherwise dissolved; or
b) the appointment of an administrator of, or the making of an administration order in relation to, either party, or the appointment of a receiver or administrative receiver of, or an encumbrancer taking possession of or selling, the whole or any part of the entity’s undertaking, assets, rights or revenue; or
c) that party entering into an arrangement, compromise or composition in satisfaction of its debts with its creditors or any class of them, or taking steps to obtain a moratorium, or making any application to a court of competent jurisdiction for protection from its creditors; or
d) that party being unable to pay its debts, or being capable of being deemed unable to pay its debts; or
e) that party entering into any arrangement, compromise or composition in satisfaction of its debts with its creditors.
“Intellectual Property Rights” means all intellectual and industrial property rights of any kind whatsoever including patents, supplementary protection certificates, rights in Know-How, registered trademarks, registered designs, models, unregistered design rights, unregistered trademarks, rights to prevent passing off or unfair competition and copyright (whether in drawings, plans, specifications, designs and computer software or otherwise), database rights, topography rights, any rights in any invention, discovery or process, and applications for and rights to apply for any of the foregoing, in each case in the United States of America and all other countries in the world and together with all renewals, extensions, continuations, divisions, reissues, re-examinations and substitutions;
“Know-How” means formulae, methods, plans, inventions, discoveries, improvements, processes, performance methodologies, techniques, specifications, technical information, tests, results, reports, component lists, manuals and instructions;
“Price(s)” means the price(s) for the Goods set forth in the Purchase Contract;
“Purchase Contract” means any contract between Seller and Company for the sale and purchase of the Goods formed in accordance with Condition 2 and incorporating these Terms and Conditions;
“Seller” means the person from whom Company purchases the Goods as outlined in the Purchase Contract;
“Specification” means in relation to the Goods, the technical specifications, industry classification or grade, including weight and volume of those Goods; all information of any description which explains the quality, type and/or functionality of the Goods;
“Terms and Conditions” means these standard terms and conditions of purchase together with any operational terms agreed in writing between Seller and Company in the Purchase Contract.
1.2 all headings are for ease of reference only and will not affect the construction or interpretation of the Terms and Conditions;
1.3 unless the context otherwise requires:
1.3.1 references to the singular include the plural and vice versa; and
1.3.2 references to any gender include every gender.
1.4 references to any statute or statutory provision will include any subordinate legislation made under it and will be construed as references to such statute, statutory provision and/or subordinate legislation as modified, amended, extended, consolidated, re-enacted and/or replaced and in force from time to time;
1.5 any words following the words “include”, “includes”, “including”, “in particular” or any similar words or expressions will be construed without limitation and accordingly will not limit the meaning of the words preceding them; and
1.6 an obligation on a party to procure or ensure the performance or standing of another person will be construed as a primary obligation of that party.
2. FORMATION AND INCORPORATION
2.1 Subject to any variation under Condition 2.6, the Purchase Contract will be upon the Terms and Conditions to the exclusion of all other terms and conditions, including any terms or conditions which Seller purports to apply under any acknowledgement or confirmation of order, quotation, Specification, delivery note, invoice or similar document, whether or not such document is referred to in the Purchase Contract.
2.2 Where applicable, each quotation for the Goods from Seller will be deemed to be an offer by Seller to sell the Goods upon the Terms and Conditions. All quotations provided by Seller, will remain open for thirty (30) days from its date of issuance. In such circumstances, the Purchase Contract is only formed when a written acceptance of Seller’s quotation from a Duly Authorised Representative of Company is given by Company to Seller.
2.3 All Purchase Contracts (including any orders) between Company and Seller will be upon these Terms and Conditions to the exclusion of all others. Seller waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of Seller that is inconsistent with these Terms and Conditions.
2.4 Seller’s written acceptance of an order submitted by Company incorporating the Terms and Conditions or Seller’s commencement of performance in accordance with such order shall be deemed conclusive evidence of Seller’s acceptance of the Terms and Conditions. If Seller does not accept such order in writing or provide written notice that it has commenced performance within ten (10) days of Seller’s receipt of the order, the order will lapse.
2.5 Seller may not cancel the Purchase Contract. Company is entitled to cancel the Purchase Contract in whole or in part by sending written notice in accordance with Condition 14 to Seller at any time prior to delivery of the Goods in which event Company’s sole liability will be to pay to Seller the Price(s) for Goods actually received by Company.
2.6 Save as otherwise expressly provided in the Purchase Contract, no variation to the Terms and Conditions will be effective unless it is in writing and signed by a Duly Authorised Representative on behalf of Company.
2.7 No Purchase Contract will be deemed valid if this Condition 2 is not met.
3. THE GOODS
3.1 The quantity, quality and description of the Goods will be as set out in Seller’s quotation or Company’s purchase order and/or in any applicable Specification supplied or advised by Company to Seller with or before the Purchase Contract.
3.2 Seller will comply with all applicable standards, laws, regulations and other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods.
3.3 Seller shall ensure that at all times it has and maintains all the licences, permissions, authorisations, consents and permits that it needs to carry out its obligations under the Purchase Contract.
3.4 If Company agrees to purchase Goods from Seller by way of sale by sample, Seller confirms that that the Goods supplied will correspond to the quality of the sample provided.
3.5 Company will have the right to inspect and test the Goods at any time prior to delivery. Seller will not unreasonably refuse any request by Company to carry out such inspection and testing and will provide Company with all access and support reasonably required to do so. Seller shall remain fully responsible for the Goods despite any such inspection or testing and any such inspection or testing shall not reduce or otherwise affect Seller’s obligations under the Purchase Contract.
3.6 If as the result of such inspection or testing Company considers that the Goods do not or are unlikely to conform, Company shall inform Seller within fourteen (14) days of inspection or testing and Seller shall immediately take such remedial actions as is necessary to ensure compliance. Company may conduct further inspections and tests after Seller has carried out its remedial actions. Without prejudice to any other rights of Company under the Purchase Contract, any failure of this obligation by Seller will be deemed to be a material breach entitling Company to terminate the Purchase Contract.
3.7 Seller acknowledges that conformity with the Purchase Contract is of the essence and Company will, at its option, be entitled to reject the Goods or terminate the Purchase Contract under these Terms and Conditions if the Goods are not in conformance with the Purchase Contract.
3.8 The weight or unit count of any consignment of Goods as recorded by Company following delivery will be conclusive evidence of the weight or unit count of such Goods and will form the basis of the calculation of the Price(s).
4. DELIVERY OF GOODS
4.1 If the Goods are to be delivered by Seller to Company’s place of business or the address stated on the Purchase Contract, Seller will off-load the Goods at its own risk as directed by Company.
4.2 The Goods will be delivered on the date or within the period specified in the Purchase Contract, or if no such period is specified then within thirty (30) days of the date of the Purchase Contract.
4.3 Seller will ensure that:
4.3.1 the Goods are marked in accordance with Company’s instructions and any applicable laws, regulations or requirements of the carrier and/or properly packed and stored so as to reach their destination in an acceptable condition;
4.3.2 each delivery will be accompanied by a delivery note which will show, inter alia, an order number, date of order, number or volume of the Goods supplied and, in the case of partial delivery, the outstanding balance remaining to be delivered; and
4.3.3 before delivery or performance, Company is provided in writing with a list by name and description of any harmful or potentially harmful properties or ingredients in the Goods supplied whether in use or otherwise.
4.4 Company reserves the right to mark, separate or quarantine the Goods immediately on delivery. This is undertaken for the purposes of security and Company will not be deemed to have accepted the Goods by reason of this nor will Seller be entitled to raise an objection on this ground to any subsequent rejection of the Goods.
4.5 No Goods supplied under the Purchase Contract earlier than the agreed date for delivery will be accepted or paid for unless Company notifies Seller of its intention to accept and pay for the same.
4.6 Without prejudice to Company’s other rights under the Purchase Contract, if Seller delivers more than 105% or less than 95% of the quantity of Goods ordered, Company will be entitled to reject all or any of the Goods. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. If Company accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis (provided that the excess delivered is of the same or similar quality as the Goods).
4.7 Company will not be deemed to have accepted the Goods until it has had fourteen (14) days to inspect them following delivery. Company will also have the right to reject any or all of the Goods within fourteen (14) days from the date of inspection if the Goods do not comply with the Purchase Contract or contain unprocessable materials or are, in Company’s reasonable opinion, not packaged safely.
4.8 If Company rejects any portion of the Goods, Company shall notify Seller. Unless the parties otherwise agree, upon notification, Seller is obligated to promptly arrange for collection of any rejected Goods, at its own cost, at an agreed upon date and time. Seller acknowledges that it is subject to storage fees and costs for any Goods not collected from Company within a reasonable time after rejection.
4.9 If the Goods are not delivered on the date set out in the Purchase Contract or as agreed by the Parties, then Company, at its option, may terminate the Purchase Contract and claim damages for any losses incurred as a result of a breach of this Condition 4.9.
5. PRICE
5.1 The Price(s) of the Goods:
5.1.1 excludes amounts in respect of value added tax (VAT), which Company shall additionally be liable to pay to Seller at the prevailing rate, subject to the receipt of a valid VAT invoice; and
5.1.2 unless otherwise stated in the Purchase Contract, includes all taxes (excluding VAT), duties, tariffs, fees, costs and expenses including without limitation the costs of packaging, insurance and carriage of the Goods.
5.2 No extra charges shall be effective unless agreed in writing with Company.
6. PAYMENT
6.1 Subject to Seller performing its obligations in accordance with the terms of the Purchase Contract, Company will pay the Prices to Seller in accordance with the payment terms set forth on the face of the Purchase Contract or, if no payment terms are provided thereon, this Condition 6.
6.2 Seller may invoice Company for the Price(s) of the Goods plus VAT at the prevailing rate (if applicable) on or at any time after the completion of delivery. Seller shall ensure that the invoice includes the date of the Purchase Contract, the contract number of the Purchase Contract, the invoice number, Seller’s VAT registration number and any supporting documents that Company may reasonably require. The invoice will be sent to Company at the address as may be notified by Company to Seller from time to time.
6.3 Each undisputed invoice will be payable by Company forty-five (45) days from the end of the month in which the invoice is received by Company.
6.4 Company will be entitled to set-off any liability which Seller has to it against any liability which it has to Seller, whether such liability is present or future, liquidated or unliquidated, under the Purchase Contract or any other contract between the parties or other cause of action and irrespective of the currency of its denomination.
6.5 No pre-payment made by Company will constitute acceptance by Company of the Goods or otherwise prejudice any rights or remedies which Company may have against Seller including the right to recover any amount overpaid or wrongfully paid to Seller.
7. INSTALLMENTS
7.1 Seller may not deliver the Goods by separate instalments or in stages or invoice Company for an instalment not yet delivered unless agreed by Company in writing. If Company does agree, each instalment or stage of the Purchase Contract will be construed as a separate contract subject to these Terms and Conditions, and without prejudice to any other right or remedy, Company will have the right, but not the obligation, to:
7.1.1 treat the entire Purchase Contract as repudiated if Seller fails to deliver or perform any instalment or stage; and
7.1.2 reject any or all of the instalments or stages if Company is entitled to reject any one instalment or stage.
8. RISK AND OWNERSHIP
Risk in the Goods will pass to Company on acceptance by it as per Condition 4. Title in the Goods will pass to Company upon the earliest to occur of (a) delivery of the Goods to Company, (b) payment of any portion of the Price for such Goods by Company, (c) Company’s acceptance of the Goods, and (d) Seller’s tender of the Goods to the carrier. Seller warrants that it has good and complete title to the Goods, free and clear of all liens, defects, encumbrances, covenants, conditions, restrictions, rights of redemptions and easements, and that no third party has any interest in the Goods. Seller will indemnify, and keep indemnified, Company and its affiliates from and against all costs, expenses, liabilities, losses, damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which Company or its affiliates incur or suffer due to any breach of this warranty.
9. INTELLECTUAL PROPERTY
9.1 If required for the effective performance of the Purchase Contract, the Parties authorises the other to use the Intellectual Property Rights of the other party for the purposes of exercising its rights and performing its obligations under the Purchase Contract. The Parties will have no other rights whatsoever in respect of the Intellectual Property Rights of the other.
9.2 Seller warrants that neither the Goods, nor their use, resale or importation, infringes the Intellectual Property Rights of any person except to the extent that any infringements arise from any Specifications, drawings, samples or descriptions provided by Company.
10. WARRANTY, INDEMNITY AND CANCELLATION
10.1 Seller warrants, represents and undertakes to Company that the Goods:
10.1.1 will be of satisfactory quality, and fit for any purpose held out by Seller or made known to Seller either in writing or orally at or prior to the Purchase Contract being formed;
10.1.2 the Goods will be accordance to the description or sample if the sale is by sample;
10.1.3 will correspond in every respect with any Specifications, samples or descriptions provided to Company; and
10.1.4 will comply with all statutory requirements, regulations and voluntary codes of conduct relating to the Goods and their sale, supply and transportation.
10.2 Without prejudice to any other rights or remedies of Company (whether express or implied), if Seller breaches any terms of the Purchase Contract (including a failure or delay in delivery) or Company terminates the Purchase Contract pursuant to these Terms and Condition then Company may (but will not be obliged) to, whether or not the Goods have been accepted:
10.2.1 cancel any or all remaining instalments or stages if the Purchase Contract has not already been terminated;
10.2.2 refuse to accept any subsequent delivery of the Goods which Seller attempts to make; and
10.2.3 claim damages for any additional costs, loss or expenses incurred by Company which are in any way attributable to Seller’s breach of the Purchase Contract, including without limitation by failing to deliver the Goods on time or at all.
10.3 Seller will indemnify, keep indemnified, defend, and hold harmless Company, its affiliates, and each of their employees, officers, directors, employees, and permitted assigns (“Indemnitees”) in full and on demand from and against all costs, expenses, and liabilities of whatever kind (including attorneys’ fees) which Company incurs or suffers directly or indirectly in any way whosoever in connection with the Goods, including without limitation that Company’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret, or other intellectual property right of any third party, or Seller’s negligence, willful misconduct, or breach of the Purchase Contract. Seller shall not enter into any settlement without Company’s prior written consent.
11. TERMINATION
11.1 Company may terminate the Purchase Contract immediately by giving written notice of termination to Seller if Seller:
11.1.1 repudiates, or threatens to repudiate, any of its obligations under the Purchase Contract;
11.1.2 is in breach of the Purchase Contract and either the breach cannot be cured or, if the breach can be cured, it is not cured by Seller within thirty (30) days of receipt of a written notice of breach from Company;
11.1.3 fails to, or threatens to fail to, timely deliver Goods conforming to the requirements of, and otherwise in accordance with, the terms and conditions of the Purchase Contract; or
11.1.4 becomes Insolvent.
11.2 Termination of the Purchase Contract, however arising, shall cause all rights and obligations to immediately cease without prejudice to any rights, obligations, claims (including claims for damages for breach), liabilities, and remedies which have accrued prior to the date of termination.
11.3 Any provision of the Purchase Contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect including without limitation Conditions 9.2, 10.3, 11.2, 11.3, 12, 14, 15, and 16.
12. LIMITATION OF LIABILITY
12.1 TO THE EXTENT PERMITTED BY LAW, COMPANY’S, INCLUDING ITS AFFILIATES’, AGGREGATE LIABILITY TO SELLER (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, RESTITUTION OR OTHERWISE) HOWSOEVER CAUSED ARISING OUT OF OR IN CONNECTION WITH THE PURCHASE CONTRACT SHALL NOT EXCEED THE PRICE PAID BY COMPANY FOR THE GOODS UNDER THE APPLICABLE PURCHASE ORDER.
12.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES INCLUDING WITHOUT LIMITATION FOR ANY LOSS OF REVENUE; LOSS OF ACTUAL OR ANTICIPATED PROFITS; LOSS OF BUSINESS; LOSS OF OPPORTUNITY; LOSS OF GOODWILL; OR LOSS OF, DAMAGE TO OR CORRUPTION OF DATA HOWSOEVER CAUSED WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
12.3 COMPANY DOES NOT LIMIT OR EXCLUDE ITS LIABILITY FOR ANY LIABILITY THAT MAY NOT BE LIMITED OR EXCLUDED BY LAW.
13. FORCE MAJEURE
Neither party shall be in breach of the Purchase Contract nor liable for delay in performing, or failure to perform, any of its obligations under the Purchase Contract if such delay or failure result from an event, circumstance or cause beyond a party’s reasonable control. In such circumstances, the time for performance shall be extended by a period equivalent to the period during which performance of the obligation has been delayed or failed to be performed, provided that the affected party gives prompt notice to the other party of any event or circumstance likely to result in a force majeure and the anticipated duration thereof. If the period of delay or non-performance continues for sixty (60) days, the party not affected may terminate the Purchase Contract by giving ten (10) days’ written notice to the affected party. Seller’s financial inability to perform, changes in cost or availability of materials, components or services, market conditions, supplier actions, or contract disputes will not constitute a force majeure or extend the time for Seller’s performance.
14. NOTICE
14.1 Any notice or other communication given under or in connection with the Purchase Contract will be in writing, and sent recorded delivery/airmail post to that party’s address.
14.2 Any notice or communication given in accordance with Condition 14.1 will be deemed to have been served if signed for at delivery.
14.3 To prove service of a notice or communication it will be sufficient to prove that the provisions of Condition 14.1 were complied with.
15. DISPUTE RESOLUTION
15.1 In the event of a Dispute, representatives of the parties will work together in good faith to try to resolve the Dispute within seven (7) days. The parties’ representatives will: (i) meet as often as the parties reasonably deem necessary to gather and exchange all information regarding the Dispute and which is relevant to its resolution and (ii) discuss the Dispute and negotiate in good faith in an effort to resolve the Dispute without the necessity of any formal proceedings. If the parties’ representatives are unable to settle the Dispute within the nominated timeframe, senior management (or equivalent) of each party will act in good faith to try to resolve the dispute within a further seven (7) days.
15.2 Where a Dispute is not cannot be settled in accordance with Condition 15.1, the Parties will endeavour to settle the matter by mediation administered by the Singapore International Mediation Centre (“SIMC”) under its mediation rules then in force, which rules are incorporated herein by reference. The mediator shall be appointed in accordance with the SIMC mediation rules. The costs of the mediator will be born equally by the parties.
15.3 If the Dispute is not settled by mediation within twenty-one (21) days of commencing the mediation, or such further period as the parties shall agree in writing, the Dispute shall be referred to and finally resolved by binding arbitration conducted by the Singapore International Arbitration Centre (“SIAC”) pursuant to the SAIC Arbitration Rules then in force, which are deemed to be incorporated by reference into this section. The number of arbitrators shall be one (1). The seat, or legal place, of arbitration shall be Singapore. The arbitral proceedings shall be conducted in English. The law governing this arbitration agreement and all arbitral proceedings shall be the substantive laws of Singapore.
15.4 This Purchase Contract is governed by the laws of the Republic of Singapore and Purchaser and Company irrevocably submit to the exclusive jurisdiction of the courts of the Republic of Singapore for any court action required to enforce the terms of the dispute resolution procedures set forth herein and/or any legal proceeding to enforce, enter judgment upon, vacate and/or modify an arbitrator’s award and each party waives any objection it may have to such jurisdiction or venue. The U.N. Convention on Contracts for the International Sale of Goods is expressly excluded and does not apply to this Purchase Contract.
15.5 No action, regardless of form, arising out of or relating in any way to this Contract or the subject matter thereof may be brought by either party more than two (2) years after the cause of action has arisen. If a party fails to bring an action within such time, then such party shall be deemed to have waived whatever rights it may have had in relation to such action including all legal and equitable remedies.
16. GENERAL
16.1 Time will be of the essence in respect of all dates, periods and timescales with which Seller is required to comply under the Purchase Contract and any dates, periods and timescales which may be substituted for them by the agreement in writing of the Parties.
16.2 Company’s rights and remedies set out in the Terms and Conditions are cumulative and in addition to and not exclusive of any rights and remedies provided by law.
16.3 If any term of the Purchase Contract is determined to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Purchase Contract and replaced with an enforceable term that effects the Parties’ original intent as closely as possible with the remainder of the Purchase Contract being unaffected and continuing in full force and effect.
16.4 A delay in exercising or failure to exercise a right or remedy under or in connection with the Purchase Contract will not constitute a waiver of, or prevent or restrict future exercise of, that or any other right or remedy, nor will the single or partial exercise of a right or remedy prevent or restrict the further exercise of that or any other right or remedy. A waiver of any right, remedy, breach or default will only be valid if it is in writing and signed by the party giving it and only in the circumstances and for the purpose for which it was given and will not constitute a waiver of any other right, remedy, breach or default.
16.5 The Purchase Contract outlines the entire agreement between the Parties with respect to the subject matter thereof and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter. The relationship of the Parties is governed solely under the Purchase Contract.
16.6 Seller will not be entitled to assign, transfer, charge, hold on trust for any person or deal in any other manner with any of its rights under the Purchase Contract or to subcontract any of its obligations under the Purchase Contract without Company’s prior written consent.
16.7 Company will be entitled to assign, transfer, charge, hold on trust for any person and deal in any other manner with any of its rights under the Purchase Contract and to subcontract any of its obligations under the Purchase Contract.
16.8 With the exception of Indemnitees who are entitled to enforce the indemnification rights provided for herein, this Purchase Contract is for the sole benefit of Company and Seller and nothing herein is intended to or shall confer upon any other person or entity any rights under the Contracts (Rights of Third Parties) Act (Chapter 53B) of Singapore.
16.9 Notwithstanding anything to the contrary, Seller shall comply at all times with Company’s policies, codes, and procedures located at https://www.simsltd.com/governance/ which are hereby incorporated in their entirety into the Purchase Contract.