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STANDARD TERMS AND CONDITIONS FOR THE SALE OF GOODS

BACKGROUND

(A) Company is a member of the Sims Limited group, a leading global recycler of ferrous and non-ferrous metals.

(B) Purchaser wishes to buy from Company, and Company wishes to sell to Purchaser, 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:

“Business Day” means a day that is not a Saturday, Sunday or public or bank holiday in Singapore;

“Company” means Sims Global Commodities Pte Ltd and any of its trading names with which Company contracts;

“Contract” means the contract between Purchaser and Company for the sale and purchase of the Goods formed in accordance with Condition 2;

“Dispute” means any dispute or difference arising between the Parties in respect of any matter connected with this Contract;

“Duly Authorised Representative” means (i) the representatives of Company as outlined in the Contract who are authorised to enter into a binding contract for the sale of Goods with Purchaser or (ii) any statutory officer of Company;

“Goods” means any goods which Company agrees to supply to Purchaser (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;

“LME” means the London Metal Exchange;

“Price(s)” means the price(s) payable by Purchaser to Company, as detailed in the Contract and/or as communicated by Company to Purchaser;

“Purchaser” means the person to whom Company sells the Goods as outlined in the 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 for the sale of goods together with any operational terms agreed in writing between Purchaser and Company in the 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;

1.3.2 and 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 2.5, the Contract will be upon the Terms and Conditions to the exclusion of all other terms and conditions, including any terms or conditions which Purchaser 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 Contract.  

2.2 Where applicable, each purchase order (or any other similar document or communication from Purchaser) for the Goods from Purchaser will be deemed to be an offer by Purchaser to buy the Goods upon the Terms and Conditions. Purchaser is responsible for ensuring that the terms of any purchase order and any applicable Specification submitted by Purchaser are complete and accurate. All purchase orders provided by Purchaser, will remain open for 30 days from its date of issuance. The Contract is only formed when a Duly Authorised Representative of Company gives written acceptance to Purchaser or Company ships the Goods.  

2.3 All Contracts for the purchase of Goods (including any orders) between Company and Purchaser will be upon these Terms and Conditions to the exclusion of all others. Purchaser waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of Purchaser that is inconsistent with these Terms and Conditions.  

2.4 Partial payment or any other form of acknowledgement to receive the Goods from Company will be deemed conclusive evidence of Purchaser’s acceptance of the Terms and Conditions.  

2.5 Save as otherwise expressly provided in the 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.

2.6 No Contract will be deemed valid if this Condition 2 is not met.

3. THE GOODS

3.1 The quantity and description of the Goods will materially be as set out in the Contract, Company’s confirmation and/or in any applicable Specification supplied or advised by Company to Purchaser with or before the Contract.  

3.2 Purchaser will comply with all applicable standards, regulations and other legal requirements in performing its obligations under the Contract.  

3.3 Purchaser will have the right to inspect and test the Goods at any time prior to shipment, however will have deemed to accepted the Goods once shipped by Company.

 3.4 The weight or unit count of any consignment of Goods as recorded by Company prior to or upon delivery of the Goods to the vessel or carrier used to transport the Goods will be conclusive evidence of the weight or unit count of Goods and will form the basis of the calculation of the Price(s).

4. PRICE

4.1 Unless otherwise provided, the Price is as stated on the face of the Contract and is exclusive (without limitation) of all insurance, costs, taxes, duties, and expenses related to the sale or delivery of the Goods.  

4.2 Any sum payable under the Contract is exclusive of value added tax (VAT) (and any other similar or equivalent taxes, duties, fees and levies imposed from time to time by any government or other authority) which will be payable by Purchaser at the prevailing rate, subject to the receipt of a valid VAT invoice.  

4.3 If the Contract provides Purchaser the option to set the Price of the Goods within a specified period of time (“Fixation Period”), Purchaser shall notify Company in writing to set the Price no later than 5:00PM local Singapore time on the final day of the Fixation Period or, if the final day of the Fixation Period is a non-Business Day, on the immediately preceding Business Day. In the event that Purchaser fails to give timely written notice to Company to set the Price, Company reserves the right to set the Price as of the final day of the Fixation Period or, if the final day of the Fixation Period is a non-Business Day, on the immediately preceding Business Day.  

4.4 If the Price of the Goods will be determined with respect to LME Official Prices or Monthly Average Settlement Prices (as those terms are defined by LME), determination of such Price will be in accordance with the LME rules and regulations in effect at the time of determination.  

4.5 The deposit must be paid by the due date set forth on the face of the Contract. If no deposit amount or due date are specified, the deposit amount shall be ten percent (10%), or such other amount as agreed to by Company in writing, of the Price and the due date shall be thirty (30) days from the date of the Contract. If the deposit is not timely paid, Company reserves the right to cancel the Contract. If Company accepts late payment of deposits, the allowable shipping period will be extended.

4.6 Company may increase the Price without notice to take account of increases in costs to Company of supplying the Goods. All clerical errors in prices are subject to correction by Company.

5. PAYMENT  

5.1 Purchaser will not be entitled to set-off any liability, whether such liability is present or future, liquidated or unliquidated, under the Contract or any other contract between the parties or other cause of action and irrespective of the currency of its denomination.  

5.2 No pre-payment or deposit accepted by Company will prejudice any rights or remedies which Company may have against Purchaser.

5.3 Company may charge interest on overdue payments at the lesser of the rate of fifteen percent (15%) per annum or the rate allowed by applicable law and/or refuse to make further deliveries to Purchaser until full payment is received. Purchaser shall reimburse Company for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court or arbitration costs.

6. INSTALMENTS

Company may deliver the Goods by separate instalments in stages or invoice the Price for an instalment separately.

7. DELIVERY OF GOODS

7.1 If the Goods are to be delivered by Company to Purchaser’s place of business or the address stated on the Contract, the Goods will be off-loaded at Purchaser’s risk.

7.2 The Company will use commercially reasonable efforts to deliver on the date or within the period specified in the Contract, but for the avoidance of doubt time of delivery is not of the essence, and Company will not be liable for any delays or failures to deliver the Goods caused by events or circumstances beyond Company’s reasonable control or Purchaser’s failure to provide Company with adequate delivery instructions or any other instructions that are relevant to the supply of the Goods (even if such delay or failure was caused in part by Company’s negligence).

7.3 If Company delivers up to and including 10% more or less than the quantity of Goods ordered, Purchaser may not reject them, but on receipt of notice from Purchaser that the wrong quantity of Goods was delivered, a pro rata adjustment shall be made to the Price.

8. RISK / OWNERSHIP

Unless otherwise specified in the Contract, risk in the Goods passes to Purchaser upon delivery of the Goods to the vessel used for shipping the Goods. The on-board date of the marine bill of lading is conclusive evidence of the date of delivery. Ownership in the Goods shall pass to Purchaser upon full payment of the Price.

9. INTELLECTUAL PROPERTY

9.1 If required for the effective performance of the 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 Contract. The Parties will have no other rights whatsoever in respect of the Intellectual Property Rights of the other.

9.2 Purchaser 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 AND INDEMNITY

10.1 SUBJECT TO ANY APPLICABLE LAW, THE GOODS ARE SOLD ON AN “AS-IS” BASIS AND THIS CONTRACT SETS OUT ENTIRE LIABILITY OF THE SELLER IN RESPECT OF THE GOODS. ALL OTHER CONDITIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED, EXCEPTING THOSE WHICH MAY NOT BE EXCLUDED BY LAW.

10.2 Purchaser agrees to indemnify, defend, and hold Company harmless from and against, all losses, liabilities, damages, fees (including attorneys’ fees), penalties, fines, and claims whatsoever (whether for personal injury, property damage, or otherwise) arising out of the transportation, unloading, storage, handling, or use of the Goods after risk in such Goods passes to Purchaser.

11. TERMINATION 

11.1 Without limiting its other rights or remedies, Company may withhold delivery to Purchaser and terminate this Contract with immediate effect by giving written notice to Purchaser if: (a) Purchaser breaches any provision of this Contract; or (b) Purchaser becomes Insolvent. Termination is without prejudice to Company’s right to recover payment from Purchaser for the Goods and Company shall be entitled to retain any payment for all Goods which have been or are in the process of being delivered to a vessel for shipping at the time of termination.  

11.2 Termination of the 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 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.

12. LIMITATION OF LIABILITY  

12.1 TO THE EXTENT PERMITTED BY LAW, COMPANY’S, INCLUDING ITS AFFILIATES’, AGGREGATE LIABILITY TO PURCHASER (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, RESTITUTION OR OTHERWISE) HOWSOEVER CAUSED ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT SHALL NOT EXCEED THE PRICE FOR THE GOODS AND WILL BE LIMITED, AT COMPANY’S OPTION, TO EITHER REPLACEMENT OF THE GOODS OR TO COMPENSATION EQUIVALENT TO THAT PORTION OF THE PRICE APPLICABLE TO THE DEFECTIVE GOODS. SUCH REPLACEMENT OR REIMBURSEMENT SHALL BE PURCHASER’S SOLE AND EXCLUSIVE REMEDY.  

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, 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 Contract nor liable for delay in performing, or failure to perform, any of its obligations under the 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. If the period of delay or non-performance continues for sixty (60) days, the party not affected may terminate the Contract by giving ten (10) days’ written notice to the affected party.

14. NOTICE  

14.1 Any notice or other communication given under or in connection with the 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 Proof of compliance with the provisions of Condition 14.1 shall be conclusive proof of the sufficiency of service of such notice or communication.

15. DISPUTE RESOLUTION, GOVERNING LAW, JURISDICTION AND LIMITATIONS ON ACTIONS  

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 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 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 Company’s rights and remedies set out in the Terms and Conditions are in addition to and not exclusive of any rights and remedies provided by law.  

16.2 If any term of the Contract is found to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Contract and replaced with an enforceable term that effects the Parties’ original intent as closely as possible with the remainder of the Contract being unaffected and continuing in full force and effect.  

16.3 A delay in exercising or failure to exercise a right or remedy under or in connection with the 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.  

16.4 The 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 Contract.  

16.5 Purchaser 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 Contract or to sub-contract any of its obligations under the Contract without Company’s prior written consent, not to unreasonably withheld.  

16.6 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 Contract and to sub-contract any of its obligations under the Contract without notice to or requiring the consent of Purchaser.  

16.7 This Contract is for the sole benefit of Company and Purchaser 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.

16.8 Notwithstanding anything to the contrary, Purchaser 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 Contract.

16.9 For shipments of Goods into, out of or through the European Union, the provisions of the Regulation (EC) 1013/2006 Addendum at the bottom of these Terms and Conditions will be deemed to apply.

Regulation (EC) 1013/2006 Addendum

Agreement concerning the shipment of green listed waste destined for recovery pursuant to Article 18 of Regulation (EC) 1013/2006 

This addendum is incorporated into and made part of the Contract.

In accordance with the requirements of Article 18 of Regulation (EC) 1013/2006 of the European Parliament and of the Council of 14 June 2006 on shipments of waste (“Regulation”) as amended, the parties to this agreement, Company, as the person who arranges the shipment, and Purchaser, as the consignee, acknowledge and agree that the shipment of waste referred to in Article 3(2) of the Regulation shall be carried out in accordance with the Regulation and subject to the following legal duties and obligations:

  1. The person who arranges the shipment shall ensure that the waste is accompanied by an Annex VII document.
  2. The Annex VII document(s) shall be signed by the person who arranges the shipment before the shipment starts and the consignee when the waste is received.
  3. This agreement shall be effective when the shipment starts.
  4. Where a shipment of waste or its recovery cannot be completed as intended, or where it has been effected as an illegal shipment, the person who arranges the shipment or, where this person is not in a position to complete the shipment of waste or its recovery (for example, due to insolvency) the consignee shall:
    (a) take the waste back or ensure it recovery in an alternative way; and
    (b) provide, if necessary, for its storage in the meantime.
  5. The person who arranges the shipment or the consignee shall provide a copy of the contract upon request by the competent authority concerned.

Last updated: 19 July 2024