MATERIAL ACCEPTANCE AGREEMENT TERMS AND CONDITIONS
MATERIAL ACCEPTANCE AGREEMENT TERMS AND CONDITIONS
The following Terms and Conditions apply to all sales of Materials by Supplier to Sims Metal.
1. DEFINITIONS: The following capitalized terms have the meaning assigned to them. Capitalized terms used in these Terms and Conditions but not defined have the meaning assigned to them in the Material Acceptance Agreement.
“Agreement” means the Material Acceptance Agreement between Supplier and Sims Metal incorporating these Terms and Conditions together with the applicable Contract.
“Appliance” means a major appliance, such as a large domestic or commercial device, including, but not limited to, a washing machine, clothes dryer, hot water heater, dehumidifier, conventional oven, microwave oven, stove, refrigerator, freezer, air conditioner, trash compactor, and residential furnace. For purposes of the Refrigerant Requirements the term “Appliance” also shall include but not be limited to motor vehicle air conditioners. For purposes of the Hazardous Material Requirements, the term “Appliance” also shall include but not be limited to ELV (except with respect to ARD).
“ARD” means a Whole ELV requiring Depollution, where Sims Metal has agreed to purchase such ARD as ARD.
“ARD Materials” means petroleum and other fluids or components ordinarily contained in an operating vehicle, such as lead-acid batteries, mercury convenience light switches, and Refrigerants.
“Batteries” means lead-acid batteries, Rechargeable Batteries and electric batteries consisting of one or more electrochemical cells with external connections for powering electrical devices.
“CAR” means “certified appliance recycler” as defined in accordance with applicable California Law.
“CAR Appliance” means an Appliance where Sims Metal has agreed to accept such Appliances as the CAR.
“Contract(s)” means Weighmaster Certificate, Purchase Contract or other such transactional arrangement identifying the type and quantity of Materials being sold by Supplier to Sims Metal.
“Depollution” means removal by Sims Metal of ARD Materials from Whole ELV, or in California of MRSH from Appliances, to the extent feasible and as required by Law.
“Effective Date” means the effective date of the Agreement.
“ELV” means an end-of-life vehicle.
“Facility” means that Sims Metal facility receiving Materials offered for purchase by Supplier.
“Hazardous Materials” means any materials which are considered hazardous or toxic materials, substances, or wastes under applicable Law, including without limitation any Hazardous Waste and any Prohibited Materials identified in the Prohibit Materials List attached and incorporated in the Agreement.
“Hazardous Waste” means a hazardous waste as defined in or otherwise in accordance with any applicable Law.
“Law” means federal, state, and local laws, regulations and requirements, and any guidance and interpretation by any applicable regulatory agency and any orders and decisions of any applicable court.
“Materials” means those various grades of ferrous and non-ferrous recyclable materials, including but not limited to ELVs and Appliances, offered for sale to Sims Metal by the Supplier.
“MRSH” means materials requiring special handling as defined in accordance with applicable California Law.
“Non-CAR Supplier” means a Supplier of Appliances in California who is not a CAR or who did not acquire such Appliances from a CAR.
“Non-Conforming Materials” means any Materials not conforming to the requirements of the Agreement or any other quality or other requirements of Sims Metal with respect to such Materials, including any Materials not as warranted or certified.
“Purchase Contract” means a contract for the sale of Materials to Sims Metal executed by Supplier and Sims Metal.
“Rechargeable Battery” means a type of Battery which can be charged, discharged into a load, and recharged many times, as opposed to a disposable or primary Battery, which is supplied fully charged and discarded after use, and which is composed of one or more electrochemical cells and is produced in many different shapes and sizes, ranging from button cells to Batteries used for electrical distribution networks, whereby such Batteries may include different combinations of electrode materials and electrolytes, including but not limited to lithium-ion, lithium iron phosphate, lithium-ion polymer, nickel-cadmium, nickel-metal hydride, and zinc-air.
“Refrigerants” means refrigerants in ELVs or Appliances, including without limitation chlorofluorocarbons (“CFCs”), hydrochlorofluorocarbons (“HCFCs”), and hydrofluorocarbons (“HFCs”), or non-exempt refrigerant substitutes (and other non-CFC replacement refrigerants), and all other Class I and II substances (as defined in 40 CFR Part 82, Subpart F) pursuant to §608 of the federal Clean Air Act, as amended.
“Refrigerant Requirements” means the requirements set out in the Agreement to evacuate Refrigerants from all Materials prior to delivery to the Sims Metal Facility.
“Sims Metal” means the affiliate of Sims Group USA Holdings Corporation doing business under the trade name “Sims Metal” that purchases the Materials from Supplier.
“Supplier” means the person or entity offering or selling Materials to Sims Metal.
“Terms and Conditions” mean these Material Acceptance Agreement Terms and Conditions.
“Weighmaster Certificate” means a certificate issued by the Sims Metal weighmaster identifying the weight and price of Materials offered for purchase by Sims Metal and includes any terms and conditions of sale set forth or incorporated therein.
“Whole ELV” means an ELV that does not have any items, materials or fluids removed.
2. RISK AND TITLE: Risk of loss or damage to the Materials shall be transferred from Supplier to Sims Metal upon (i) retrieval of the Materials from Supplier’s facility by Sims Metal, or (ii) upon delivery to a Facility if Supplier delivers the Materials to Sims Metal (in either case, “Delivery”). Title and all other incidents of ownership to the Materials shall be transferred from Supplier to Sims Metal upon Acceptance (as hereinafter defined). Notwithstanding anything herein to the contrary, under no circumstances shall title to any Non-Conforming Materials or Hazardous Materials transfer to Sims Metal at any time, and Sims Metal reserves the right to reject at any time any such Non-Conforming Materials or Hazardous Materials, and Supplier shall be wholly responsible for the handling and disposal thereof at its sole cost, expense and risk.
3. ACCEPTANCE: Sims Metal agrees to buy Materials only upon each issuance to Supplier of a Contract for the purchase of such Materials at the price specified therein and subject to the terms and conditions of the Agreement. Delivery of the Materials to Sims Metal shall not amount to Acceptance (as hereinafter defined). Sims Metal shall not be deemed to have accepted the Materials until such Materials have been approved by Sims Metal at its Facility. Within a reasonable time of Delivery of Materials to a Sims Metal Facility, Sims Metal shall carry out a visual inspection and any other checks it requires. If such inspection or check confirms that the Materials comply with the Agreement, then title in such Materials will transfer to Sims Metal (“Acceptance”). Sims Metal reserves the right to reject at any time any Non-Conforming Materials or load of Materials containing Non-Conforming Materials; whereby Supplier shall remove from the Facility any such rejected Materials or load of Materials, at Supplier’s sole cost and risk.
4. WARRANTY OF TITLE: Supplier represents, warrants and certifies that (a) the Materials are free and clear of any liens or encumbrances, and (b) Supplier legally owns or is legally entitled to sell or dispose of the Materials.
5. LIMITATION OF LIABILITY: NOTWITHSTANDING ANYTHING TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF SIMS METAL UNDER THE AGREEMENT WHATSOEVER WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, RESTITUTION UNDER ANY INDEMNITY OR OTHERWISE FOR ANY DAMAGES, LIABILITIES, FEES, OR LOSSES HOWSOEVER CAUSED WILL BE LIMITED TO THE PRICE PAID FOR THE MATERIALS SUBJECT TO CLAIM OR LOSS. IN NO EVENT SHALL SIMS METAL BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR OTHER SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY DELAY DAMAGES, LOST OPPORTUNITY DAMAGES, OR LOST PROFITS. SIMS METAL DOES NOT EXCLUDE OR LIMIT ITS LIABILITY (IF ANY) FOR ANY MATTER FOR WHICH IT WOULD BE ILLEGAL FOR IT TO EXCLUDE OR LIMIT OR TO ATTEMPT TO EXCLUDE OR LIMIT ITS LIABILITY.
6. INDEMNITY: Supplier agrees to defend, indemnify, release, and hold harmless Sims Metal and its owners, affiliates, and employees from and against any claim, penalty, fine, fee, cost, expense (including attorney and expert fees), loss, obligation, damages, enforcement actions, or any other liability of any kind arising from, directly or indirectly, in whole or in part, or relating in any way to: (a) the Agreement or the Materials; (b) any breach of the Agreement or any representation, warranty or certification herein by Supplier; or (c) any act or omission of Supplier or any third party acting on its behalf. All warranties, certifications, indemnities, and other obligations made by Supplier shall survive the expiration of the Agreement.
7. MISCELLANEOUS:
7.1 Each Agreement constitutes the entire agreement between the parties with respect to the subject matter thereof and the transactions contemplated thereby to the exclusion of any additional terms and conditions, including Supplier’s standard terms and conditions, and supersedes any prior or contemporaneous understandings, agreements, representations, and warranties, both written and oral. Any additional or conflicting terms in any of the Supplier’s documents (e.g., proposal, invoice, etc.) are expressly rejected. Any acknowledgment or confirmation issued by Supplier regarding any Agreement shall be deemed as issued solely for administrative purposes but in no event shall any terms or conditions thereon govern. Supplier 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 Sims Metal not contained herein.
7.2 These Terms and Conditions may be modified by Sims Metal at any time, without notice to Supplier, and such modifications will be effective immediately upon posting. Supplier is solely responsible for regularly reviewing the Terms and Conditions for any modifications or changes. Sales of Materials to Sims Metal shall constitute Supplier’s acceptance of the version of these Terms and Conditions in effect at the time of sale.
7.3 Sims Metal may assign, transfer, or delegate any of its rights or obligations under the Agreement.
7.4 Sims Metal’s rights and remedies set out in these Terms and Conditions are in addition to and not exclusive of any rights and remedies provided by Law.
7.5 The Agreement shall be construed in accordance with the laws of the State of Illinois without regard to conflicts of law principles and expressly excluding application of the U.N. Convention on Contracts for the International Sale of Goods. The parties irrevocably agree to settle any dispute or claim that arises out of or in connection with an Agreement or its subject matter or formation (including contractual disputes or claims) in any state or federal court located in Cook County, Illinois, and they irrevocably submit to the jurisdiction of such court and waive any objections they may have to either the jurisdiction or venue of such court, including without limitation for forum non conveniens.
7.6 If any term of the Agreement is found by any court or body or authority of competent jurisdiction to be illegal, unlawful, void or unenforceable, such term will be deemed to be severed from the Agreement and this will not affect the remainder of the Agreement which will continue in full force and effect.
Last updated March 6, 2025