Vendor Terms and Conditions

Vendor Terms and Conditions

I. GENERAL TERMS AND CONDITIONS FOR THE PURCHASE OF SERVICES

1. DEFINITIONS.

“Agreement” means these General Terms and Conditions and any agreement, purchase order, SOW or other document incorporating these General Terms and Conditions.

“Authorizations” means all authorizations, permits, licenses, approvals, certificates, consents or other documentation required to perform the Work in compliance with all applicable Laws.

“Confidential Information” means any Sims information that is treated as confidential by Sims, including, without limitation, all nonpublic information, documents, or materials concerning Sims or its clients’ business such as personnel information, trade secrets, technology, methods, processes, models, finances, blueprints, documents, information pertaining to business operations and strategies, suppliers, customers, pricing, marketing, finances, sourcing, personnel, know-how, operations of the Company, or otherwise sensitive business information including information developed during the course of the Work and the existence and terms of this Agreement, and other confidential information of Sims’ affiliates, and their suppliers or customers, in each case whether spoken, written, printed, electronic, or in any other form or medium.

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 Sims; (b) is or becomes generally known by the public other than by Contractor’s breach of the Agreement or other wrongful act; (c) is developed by Contractor independently of, and without reference to, any Confidential Information; or (d) is received by Contractor from a third party not under an obligation to maintain the confidentiality of such information.

“Contractor” means anyone providing services or goods to Sims pursuant to an Agreement.

“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 Sims or that are identified as Deliverables in the Agreement or any SOW.

“Facility” means the 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 Sims, its direct and indirect owners and each of its and 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 laws, statutes, acts, regulations, or ordinances of any local, state or federal authority as modified, amended, extended, consolidated, re-enacted 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.”

“Sims” means the Sims legal entity identified in the Agreement.

“Sims Materials” means any documents, specifications, data, know how, methodologies, software, and other materials provided to Contractor by Sims.

“Statement of Work” or “SOW” means any statement of work, purchase order, work order or similar document detailing the Work to be performed by the Contractor, including the deliverables and timelines.

“Subcontractor(s)” means all persons, firms, agents, suppliers or subcontractors which furnish material, labor, equipment or services to Contractor in connection with the Work.

“Supplier Code of Conduct” means Sims’s Supplier Code of Conduct available at https://www.simsltd.com/governance/.

“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 Sims in accordance with Sims’s policies and procedures including the furnishing of all labor, supervision, power, tools, equipment, and all other materials necessary for performance of the Work and compliance with the Agreement.

3. LOSS OR DAMAGE. Contractor shall assume full liability for any and all property lost or damaged while under its care or control except when loss or damage arises from a Force Majeure Event. Sims 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 even if occurring at a Sims Facility.

4. CLEAN UP. Contractor must remove and dispose of all debris and waste, including hazardous materials (but excluding scrap metal), resulting from the Work, in full compliance with applicable Laws. If Sims incurs any expenses for cleaning up or removing this debris, Contractor must reimburse Sims immediately or Sims may deduct these costs from the contractor’s payments.

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 Sims for its approval such plans, working drawings and specifications covering the Work, and in such numbers, as reasonably required by Sims; 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 Sims.

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 absolute and unrestricted right, authority, power and capacity to enter into and be bound by the Agreement and to perform its obligations hereunder and grant the rights granted herein.

6.3. its entering into the Agreement and performance of the Work do not and will not conflict with or result in any breach of or constitute a default under any other agreement or undertaking to which Contractor or any of its property is subject.

6.4. it will comply, and shall ensure its Subcontractors’ compliance, with the Supplier Code of Conduct.

6.5. it holds and will maintain all necessary Authorizations.

6.6. all Work will be performed in a safe and workmanlike manner in accordance with all applicable Laws and best industry standards.

6.7. all personnel who perform the Work have been properly trained and are physically and medically capable of performing the Work and have been properly equipped with all clothing, equipment and materials necessary to perform the Work in a safe and workmanlike manner.

6.8. it has, to the extent permitted by law, performed a background check on all employees and Subcontractors who perform Work at a Sims Facility.

6.9. none of the Work, Deliverables or materials used in the Work (including software) and Sims’s use thereof infringes or will infringe the rights of any third party (including Intellectual Property Rights or Moral Rights).

6.10. all Deliverables and any software (or access thereto) provided to Sims by Contractor or that will interact with or access Sims’s systems shall be at the time of delivery and thereafter will remain free of any virus, trojan horse, worm, backdoor, malware, time bomb, drop dead device or other software the effect of which is to permit unauthorized access or to disable, erase, corrupt, or otherwise harm any computer, systems, or software.

6.11. Sims will receive good and valid title to all Deliverables, free and clear of all encumbrances, security interests and liens of any kind.

6.12. it publicly advertises its services and provides its services to other entities besides Sims.

6.13. it is customarily engaged in an independently established business whose services are of the same nature as the Work performed under the Agreement.

6.14. it understands and agrees that the Work is outside of Sims’s usual business.

6.15. the individual(s) executing or attesting the Agreement on its behalf is authorized to do so.

6.16. Contractor shall comply at all times with Sims’ policies, codes, and procedures located at https://www.simsltd.com/governance/ which are hereby incorporated in their entirety into this Agreement.

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 or services furnished in connection with the Work, or from work, labor, equipment or services at variance with any and all criteria specified by Sims. Contractor further warrants that all materials furnished by Contractor and any subcontractor shall conform and comply with any and all criteria specified by Sims.

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 Sims 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 necessary Authorizations 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 applicable Laws.

10. SAFETY AND ENVIRONMENTAL.

10.1. Sims 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. If the Work is to be performed at a Sims Facility, Contractor may perform the Work only at such times as agreed to in writing in advance by Sims. 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 Laws. Sims 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 Sims 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 and must be agreed to prior to commencement of the Work. Estimated hours worked and number of personnel on-site shall be provided to Sims 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 Sims with a copy of its safety and training manuals along with evidence that its personnel have been properly trained, licensed, certified, fitted, 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 Sims’s option, by Sims at Contractor’s sole cost and expense.

10.3.4. While at a Sims Facility, Contractor shall comply with all Sims site protocols relating to business and office conduct; health and safety; smoking and drug use; and use of Sims equipment, supplies, information technology, networks, and other resources.

10.3.5. Any personnel of Contractor or a Subcontractor who does not abide by the Sims environmental, health, safety and site protocols and applicable Law shall not be allowed to proceed with the Work. Sims reserves the right to remove any personnel of Contractor or Subcontractor from the Work or a Sims Facility.

10.3.6. Contractor must have Material Safety Data Sheets (MSDS) available for any and all chemicals, including, without limitation, hazardous materials brought into a Sims Facility. Contractor shall ensure that all chemicals or hazardous materials are brought into a Sims 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.

10.3.7. If Contractor uses or employs equipment owned by Sims, Contractor does so at its own risk and expense. Contractor shall be responsible to conduct a detailed inspection prior to utilizing Sims equipment. If any safety or maintenance concerns are identified, Contractor shall not use the equipment and shall immediately notify Sims of such conditions.

11. REPORTING. Contractor shall immediately provide written notice to Sims 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 Sims (where practicable), take appropriate measures in accordance with the Agreement and applicable 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 Sims or its insurance carriers as may be specifically requested and approved in writing in advance by Sims. 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 Sims’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 Sims, BE DEEMED A BREACH OF THE AGREEMENT. To the fullest extent permitted by law, Contractor shall obtain from all Subcontractors a waiver of lien in form acceptable to Sims. Prior to any partial or final payment by Sims 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 Sims, its successors and assigns to enforce any Lien(s) filed in connection with Work provided under the Agreement and will indemnify Sims, its successors and assigns against Losses arising therefrom. If Contractor fails to discharge any Lien(s) within the time and as herein provided, Sims may discharge or pay the same, and all costs incurred by Sims in connection therewith, including attorneys’ fees, shall be paid by Contractor to Sims on demand, or, at Sims’s option, deducted by Sims from any payments due, or to become due, to Contractor.

13. CONFIDENTIALITY.

13.1  Contractor acknowledges that it may have access to Confidential Information.  Contractor agrees to treat all Confidential Information as strictly confidential, not to disclose Confidential Information or permit it to be disclosed, in whole or part, to any third party without the prior written consent of Sims in each instance. 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 Sims. 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 Sims with prompt notice thereof, consult with Sims regarding the proper response to such requirement sufficiently in advance of making any disclosure to permit Sims to contest the order or seek confidentiality protections, as determined in Sims’ sole discretion and shall also assist Sims in seeking appropriate steps to implement such response or protect the confidentiality of such Confidential Information, and only disclose the minimum amount of Confidential Information legally required. Contractor shall notify Sims immediately in the event Contractor becomes aware of any loss or unauthorized disclosure of any Confidential Information.

14. INTELLECTUAL PROPERTY RIGHTS.

14.1. Sims 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 Sims. If, for any reason, any Work Product does not constitute a “work made for hire,” Contractor hereby irrevocably assigns to Sims, 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.

14.2. Any assignment of copyrights under the 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.

14.3. Contractor shall make full and prompt disclosure to Sims 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 Sims. Contractor shall not disclose to any third party the nature or details of any such inventions or processes without the prior written consent of Sims. Any patent or copyright applications relating to the Work, related to trade secrets of Sims or which relate to tasks assigned to Contractor by Sims, that may be filed at any time, shall belong to Sims, and Contractor hereby assigns same to Sims, for no additional consideration, as having been conceived or reduced to practice during the pendency of the Agreement.

14.4. Upon the request of Sims, 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 Sims to prosecute, register, perfect, record, or enforce its rights in any Work Product. In the event Sims is unable, after reasonable effort, to obtain Contractor’s signature on any such documents, Contractor hereby irrevocably designates and appoints Sims 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.

14.5. Notwithstanding Section 14.1, 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 Sims 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. Sims may assign, transfer and sublicense (through multiple tiers) such rights to others without Contractor’s approval.

14.6. As between Contractor and Sims, Sims is, and will remain, the sole and exclusive owner of all right, title, and interest in and to any Sims 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 Sims Materials except solely during the Term to the extent pre-approved by Sims. All other rights in and to Sims materials are expressly reserved by Sims. Contractor has no right or license to use Sims’s trademarks, service marks, trade names, logos, symbols, or brand names.

14.7. Contractor shall require each of its personnel (employees and contractors) to execute written agreements securing for Sims the rights provided for in this Section 14 prior to such person providing any Work.

15. NO TRANSFER OF RIGHTS. All information or data that is disclosed or provided by Sims to Contractor or Subcontractors will remain the property of Sims (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 Sims.

16. RETURN OF INFORMATION. At the request of Sims, Contractor will be obliged to return all information or data, including Confidential Information, immediately that has been disclosed or provided to it by Sims. If, by agreement with Sims, 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 Sims, delete all such information or data and certify to Sims that all such information or data has been returned or deleted, as applicable.

17. PAYMENT AND INVOICING.

17.1. 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 sales tax, value added tax or other applicable excise tax or duty. Unless otherwise agreed to in writing by the parties, Sims has no obligation or liability to pay or reimburse any other fees, taxes, or other amounts for the Work unless required by Law.

17.2. 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 Sims representative.

17.3. Unless otherwise specified in an SOW, Contractor shall issue invoices to Sims 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, and a description of the services to which the invoice relates. Invoices will be sent to Sims at the address in the Agreement or as may be notified by Sims to Contractor from time to time.

17.4. Sims shall pay any uncontested amounts within sixty (60) days of receipt of an invoice. If Sims contests any part of an invoice, Sims 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 Sims that it contests the unpaid amount. The parties shall engage in good faith efforts to resolve the contested amounts. Sims is not obligated to pay any invoice received more than one hundred twenty (120) days after the invoice was due.

18. RIGHT TO SET OFF. Without prejudice to any other right or remedy it may have, Sims will be entitled to set-off any monetary obligation which Contractor has to Sims against any monetary obligation which Sims 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.

19. 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), Sims shall have the right to terminate the Work and any Agreement immediately. In the event of termination by Sims as a result of a default by Contractor, Sims 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 Sims 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.

20. TERMINATION AND SUSPENSION. Sims 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 Sims, discontinue performance under the Agreement or specified SOW. Sims 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 section, Sims shall pay Contractor only for the Work acceptably performed prior to termination but not yet paid for. Sims 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.

21. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY, SIMS’S MAXIMUM AGGREGATE LIABILITY UNDER THE 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 (12) MONTHS PRIOR TO A CLAIM ARISING. IN NO EVENT SHALL SIMS 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. SIMS DOES NOT EXCLUDE OR LIMIT ITS LIABILITY (IF ANY) FOR ANY MATTER FOR WHICH IT WOULD BE ILLEGAL FOR Sims TO EXCLUDE, LIMIT, OR ATTEMPT TO EXCLUDE OR LIMIT ITS LIABILITY.

22. FORCE MAJEURE. Neither Sims nor Contractor shall be liable for failure to perform its obligations under the Agreement due to 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 the inability to do so is the result of a Force Majeure Event.

23. INDEPENDENT CONTRACTOR. Contractor agrees that it is an independent contractor and that Sims shall not control the manner or means by which Contractor or its Subcontractors perform the Work. Contractor has no right or authority in any way to bind, obligate or make agreements for Sims in its capacity as contractor of Sims without the prior written consent of Sims. Contractor shall be solely responsible to Sims 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. Sims 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 Sims 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 Sims against all expenses or losses (including attorney’s fees) related to claims made by or on behalf of any such person against Sims.

24. 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 Sims’s prior written consent. Any assignment or subcontract without Sims’s prior written consent shall be void. Contractor shall provide Sims with copies of any proposed subcontract when seeking Sims’s written consent thereto. Sims may freely assign its rights or delegate its duties under the Agreement. Any assignment, subcontracting or transfer of any of Contractor’s obligations under the Agreement shall not relieve Contractor of its responsibility for such obligations and Contractor will remain fully liable 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 those of Contractor.

25. NON-SOLICITATION. Contractor agrees that during the pendency of the Agreement and for a period of twelve (12) months following its termination or expiration, Contractor shall not solicit, directly or indirectly, any Sims personnel for employment or otherwise induce such person to end their employment with Sims without the prior written consent of Sims, to be given or withheld in Sims’s sole discretion. For the purposes of this section, neither an advertisement of a job listing directed to the general public nor an individual’s self-motivated response thereto shall constitute a “solicitation” or “inducement.”

26. 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 the Agreement and each SOW, including all deadlines set forth therein, is strictly required.

27. DATA PROCESSING AND PROTECTION. Each party will be responsible for its own compliance with all applicable Laws concerning the processing, protection or security of personal data.

28. GOVERNING LAW AND JURISDICTION. The Agreement shall be governed and construed in accordance with the Laws of the State of New York, 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 resolve any dispute or claim that arises out of or in connection with the Agreement or its subject matter or formation (including non-contractual disputes or claims) in the state or federal courts of the State of New York, and they irrevocably submit to the exclusive jurisdiction and venue of such courts and waive any objection to either the jurisdiction or venue of such courts.

29. SURVIVAL. Those provisions that by their nature are intended to survive termination or expiration of the Agreement shall so survive including, without limitation, all insurance requirements, the provisions of this section and those of Section 4 (Clean Up), Section 6 (Representations and Warranties), Section 7 (Warranty), Section 8 (Indemnity), Section 13 (Confidentiality), Section 18 (Right to Set Off), Section 19 (Default), Section 21 (Limitation of Liability), Section 24 (Assignments, Subcontracts and Transfers), Section 25 (Non-Solicitation), Section 28 (Governing Law and Jurisdiction), and Section 30 (Miscellaneous).

30. MISCELLANEOUS.

30.1. The Agreement, together with any schedules, exhibits, or SOWs, represents the entire agreement of the parties thereto 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 Sims that is not contained herein.

30.2. In the event of any conflict or inconsistency between these General Terms and Conditions and any agreement or other document incorporating these General Terms and Conditions or pertaining to the Work, these General Terms and Conditions shall control.

30.3. The Agreement is binding upon and shall inure to the benefit of Sims and Contractor and to their respective heirs, successors and assigns.

30.4. No amendment of the Agreement will be valid unless in writing signed by an authorized representative of each party.

30.5. No provision in the Agreement is intended or shall create any rights with respect to the subject matter thereof in any third party with the exception of Indemnitees who may enforce the indemnification rights in Section 8.

30.6. Any failure or delay by Sims 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 Sims 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.

30.7. Headings are for reference only and do not affect interpretation.

30.8. If any arbitrator or court of competent jurisdiction determines any provision to be 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.

30.9. Unless expressly provided in the Agreement, nothing shall be deemed to obligate Sims to deal exclusively with Contractor or guarantee Contractor a minimum amount of Work or fees.

II. ENGINEERING SERVICES TERMS AND CONDITIONS

If the Work entails Engineering Services, the following Engineering Services Terms and Conditions shall apply in addition to the General Terms and Conditions. In the event of a conflict between these Engineering Services Terms and Conditions and the General Terms and Conditions, these Engineering Services Terms and Conditions shall control:

1. DEFINITIONS.

“Engineering Services” means professional services in the area of engineering as specifically provided in an SOW.

“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 otherwise in connection with the Agreement.

2. REPRESENTATIONS AND WARRANTIES. Without limiting the representations and warranties in the General Terms and Conditions, Contractor further represents and warrants that:

2.1. Sims will receive good and valid title to all Work Product, free and clear of all encumbrances and liens of any kind.

2.2. all Work Product, unless explicitly authorized by Sims in writing, is and shall be Contractor’s original work (except for material provided by Sims or that Contractor expressly identifies as being in the public domain) 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.

2.3. it understands that Sims intends to rely on the information contained in the Work Product and that such information is, to the best of Contractor’s knowledge, accurate, complete, and adequate and Sims may rely on such information without independent verification.

3. TERMINATION.

3.1. Notwithstanding Section 20 of the General Terms and Conditions (Termination and Suspension), Sims may terminate the Agreement with or without cause immediately upon written notice to Contractor. In the event of termination pursuant to this clause, Sims shall pay Contractor on a pro-rata basis any payments then due and payable for any Work completed to Sims’s satisfaction up to and including the date of such termination.

3.2. Contractor or Sims may terminate the Agreement effective immediately upon written notice to the other party, if the other party materially breaches the 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 five (5) calendar days after receipt of written notice of such breach.

3.3. Upon expiration or termination of the Agreement for any reason, or at any other time upon Sims’s written request, Contractor shall promptly:

3.3.1. deliver to Sims all Work Product (whether complete or incomplete) and all hardware, software, tools, equipment, or other materials provided to Contractor by Sims;

3.3.2. deliver to Sims all tangible documents and materials (and any copies) containing, reflecting, incorporating, or based on the Confidential Information;

3.3.3. permanently erase all of the Confidential Information from Contractor’s computer systems; and

3.3.4. certify in writing to Sims that Contractor has complied with the requirements of this clause.

4. 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 Sims; provided, that, during the Term, Contractor shall not be engaged in any business activities that do or may compete with the business of Sims without the written consent of Sims’s legal team to be given or withheld in its sole discretion.

III.     HOT WORK TERMS AND CONDITIONS

If the Work entails Hot Work, the following Hot Work Terms and Conditions shall apply in addition to the General Terms and Conditions. In the event of a conflict between these Hot Work Terms and Conditions and the General Terms and Conditions, these 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 Sims 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 Sims, 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 Sims containing at a minimum the safety procedures set forth in Section 2 (Hot Work Safety) below.

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 Sims with a copy of each of the following documents, prepared in accordance with the requirements of Law (including any Laws promulgated by OSHA) and the 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 Sims 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 Sims 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 Sims lockout/tagout policies;

4.8 approving Hot Work Permits; and

4.9 submitting copies of all Hot Work Permits to Sims.

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 these 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 Sims requires that the supplier remove such hazardous materials and fluids prior to delivery to a Sims 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 Sims, 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 Sims, 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 Sims, prepare by oxygen-propane cutting those certain Cut Grade Goods as designated from time-to-time by Sims, 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 Sims in order to provide load weights acceptable to Sims 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.

IV. 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. In the event of a conflict between these Marine Services Terms and Conditions and the General Terms and Conditions, these 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 Marine Services for Sims containing at a minimum the safety procedures set forth in Section 2 (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.

“Vessel(s)” means any craft 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 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; (ii) it shall use best efforts to prosecute the contemplated Work with due dispatch; (iii) it shall comply with the arrival and departure times set forth in the relevant SOW; (iv) any Vessel it supplies shall be capable of performing the Work at such speeds as would be considered normal for comparable services; and (v) it has informed Sims of any special circumstances or conditions applicable to the Work which may affect the performance of Work under the 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 Sims’s sole discretion, Sims 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 Sims’s cargo, personnel, or Vessel while providing assistance to third parties. Sims 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. Sims’s Vessel(s), Contractor’s Vessel(s), Sims, 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 Sims, BE DEEMED A BREACH OF THE 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 Sims Vessel pursuant to an in rem action.

7. MARINE POLLUTION INDEMNITY. Contractor shall assume all liability for and defend, indemnify and hold Sims harmless from all Losses arising out of or relating in any way to the release of hazardous or toxic materials into the environment (including the water or shore) or any other pollution or contamination in connection with Contractor’s performance of the Work. Contractor shall take all necessary measures to ensure that the disposal of all substances, articles or liquids, including without limitation oils, bilge water, and wastes, used in the course of or resulting from Contractor’s performance of the Work, is carried out in accordance with applicable law and in such a manner as to not cause pollution or contamination of the environment (including the water or shore).

V. SOFTWARE SERVICES TERMS AND CONDITIONS

If the Work includes providing Sims with any Service Software, the following Software Services Terms and Conditions shall apply in addition to the General Terms and Conditions. In the event of a conflict between these Software Services Terms and Conditions and the General Terms and Conditions (including a conflict between definitions), these Software Services Terms and Conditions shall control:

1. DEFINITIONS.

“Harmful Code” means any software, hardware or other technologies, devices, or means, the purpose or effect of which is to: (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner, any (i) computer, software, firmware, hardware, system or network, or (ii) any application or function of any of the foregoing or the integrity, use, or operation of any data processed thereby; or (b) prevent Sims from accessing or using any Deliverable as intended by this Agreement, and includes any virus, bug, Trojan horse, worm, backdoor, or other malicious computer code and any time bomb or drop dead device.

“Service Software” means any Deliverable which includes a software application or applications or any third-party or other software, and all new versions, updates, revisions, improvements, and modifications of the foregoing, that Contractor provides access to and/or use of as part of the Work.

2. WARRANTY. Contractor warrants that all Service Software are and will remain free of Harmful Code. Contractor shall defend, indemnify and hold harmless Sims from and against any and all Losses incurred by Sims to the extent that such Losses do or are alleged to arise out of or result from Contractor’s breach of the preceding warranty (including, in the case of Contractor, any action or failure to act that, if taken or not taken by Contractor, would constitute such a breach by Contractor).

3. ACCEPANCE AND TESTING. All Service Software shall be subject to the following testing and acceptance protocol:

(a)  When Contractor notifies Sims in writing that the Service Software is ready for use in a production environment, Sims shall have ninety (90) days (or such other period as may be expressly set forth in the applicable SOW) from receipt of the notice to test the Service Software to determine whether it complies in all material respects with the requirements of this Agreement and the SOW.

(b)  Upon completion of Sims’ testing, Sims shall notify Contractor of its acceptance (”Accept” or “Acceptance”) or, if it has identified any noncompliance with the SOW, rejection (”Reject” or “Rejection”) of the Service Software. If Sims Rejects the Service Software, Sims shall provide a written list of items that must be corrected. On receipt of Sims’ notice, Contractor shall promptly commence, at no additional cost or charge to Sims, all reasonable efforts to complete, as quickly as possible and in any event within fourteen (14) days from receipt of Sims’ notice (or such other period as may be agreed upon by the Parties in writing), such necessary corrections, repairs, and modifications to the Service Software to bring them into full compliance with the specifications stated in the SOW.

(c)  If any corrective measures are required under the preceding Clause (a) of this Section, upon its completion of all such measures, Contractor shall notify Sims in writing and the process set forth in preceding  Clauses (a) and (b) of this Section shall be repeated; provided that if Sims determines that the Service Software, as revised, still do not comply in all material respects with the specifications stated in the SOW, Sims may, in its sole discretion:

(i)  require the Contractor to repeat the correction, repair and modification process set forth in preceding Clause (b) at no additional cost or charge to Sims; or

(ii)  terminate any and all of the relevant SOW, this Agreement and any other SOWs, with no liability, obligation or penalty to Sims by reason of such termination of any of these instruments or for any reason under or in connection with such terminated relevant SOW.

(d)  The Parties shall repeat the foregoing procedure until Sims Accepts the Service Software or elects to terminate this Agreement or the relevant SOW as provided in preceding Clause (c)(ii) above. If, exercising its rights under preceding Clause (c)(ii), Sims elects to terminate: (i) solely the relevant SOW, Contractor shall refund to Sims all sums previously paid to Contractor under such SOW; (ii) this Agreement (including the relevant SOW), Contractor shall refund to Sims all sums previously paid to Contractor under the relevant SOW and any prepaid fees for Work that has not been provided under this Agreement, including any other SOW hereunder; or (iii) any other SOW (s) (but not the entirety of this Agreement), Contractor shall refund to Sims any prepaid fees for Work that has not been provided under such other SOW (s) and, if Sims also terminates the relevant SOW, all sums previously paid to Contractor under such SOW. All refunds payable under this Clause (d) shall be paid within ten (10) business days of Sims’ written notice of termination under preceding Clause (c)(ii).

4. NON-NEGOTIATED TERMS. No browse-wrap, shrink-wrap, click-wrap or other non-negotiated terms and conditions (each “NG-Terms”) provided with any of the Software Services will constitute a part or amendment of this Agreement or of any SOW or be binding on Sims for any purpose. All such NG-Terms have no force and effect and are deemed rejected by Sims, even if access to or use of any Software Service, Work or Deliverable requires affirmative acceptance of such terms and conditions.

5. DATA PROCESSING AGREEMENT. All Work involving the operation of Service Software under this Agreement shall be subject to the following Data Processing Agreement (“DPA”):

Data Processing Agreement

BACKGROUND

(A)  Sims and the Contractor entered into this Agreement that may require the Contractor to Process Data on behalf of Sims.

(B)  This DPA sets out the additional terms, requirements and conditions on which the Contractor will Process Data when providing Services under the Agreement. This DPA incorporates by reference all mandatory clauses required by applicable Data Protection Legislation for contracts between controllers and processors.

AGREED TERMS

1. DEFINITIONS AND INTERPRETATION

The following definitions and rules of interpretation apply only to this DPA.

1.1  Definitions:

Authorized Persons:  the persons or categories of persons that Sims authorizes to give the Contractor Personal Data processing instructions.

Business Purposes:  the Services described in the Agreement.

Services:  all services performed in the course of performing the Work.

Data: all information of Sims which undergoes Processing by Contractor and which includes but is not limited to Personal Data, Confidential Information, and/or data and information which is generated as a result of performing the Work.

Data Subject:  an individual who is the subject of Personal Data.

Personal Data:  means any information relating to an identified or identifiable natural person that is processed by the Contractor as a result of, or in connection with, the provision of the Services under the Agreement; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.

Processing, processes and process:  either any activity that involves the use of Data or as the Data Protection Legislation may otherwise define processing, processes or process. It includes any operation or set of operations which is performed on Data or on sets of Data, whether or not by automated means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction. Processing also includes transferring Data to third parties.

Data Protection Legislation:  all applicable privacy and data protection Laws, which when applicable includes but is not limited to:

• Australian Privacy Act 1988;
• EU General Data Protection Regulation (Regulation (EU) 2016/679);
• Retained General Data Protection Regulation ((EU) 2016/679) (UK GDPR);
• USA Health Insurance Portability and Accountability Act of 1996 (HIPAA); and
• USA HITECH Act of 2009, 42 USC sec 139w-4(0)(2) (February 2009), sec 13301, subtitle B: Incentives for the Use of Health Information Technology;
• California Consumer Privacy Act of 2018 (CCPA); and
• Brazil General Personal Data Protection Law (Portuguese: Lei Geral de Proteção de Dados Pessoais, or LGPD; Lei 13709/2018).

Data Breach:  a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Data transmitted, stored or otherwise processed.

1.2  This DPA is subject to the terms of the Agreement and is incorporated into the Agreement. Interpretations and defined terms set forth in the Agreement apply to the interpretation of this DPA.

1.3  The Annexes form part of this DPA and will have effect as if set out in full in the body of this DPA. Any reference to this DPA includes the Annexes.

1.4  A reference to writing or written includes faxes and email.

1.5  In the case of conflict or ambiguity between:

(a)  any provision contained in the body of this DPA and any provision contained in the Annexes, the provision in the body of this DPA will prevail;

(b)  the terms of any accompanying invoice or other documents annexed to this DPA and any provision contained in the Annexes, the provision contained in the Annexes will prevail; and

(c)  any of the provisions of this DPA and the provisions of the Agreement, the provisions of the Agreement will prevail.

2. DATA TYPES AND PROCESSING PURPOSES

2.1  Sims and the Contractor acknowledge that for the purpose of the Data Protection Legislation, Sims is the controller and the Contractor is the processor.

2.2  Sims retains control of the Data and remains responsible for its compliance obligations under the applicable Data Protection Legislation, including providing any required notices and obtaining any required consents, and for the processing instructions it gives to the Contractor.

2.3  Annex A describes the subject matter, duration, nature and purpose of processing and the Data categories and Data Subject types in respect of which the Contractor may process to fulfil the Business Purposes of the Agreement.

3. PROVIDER’S OBLIGATIONS

3.1  The Contractor will only process the Data to the extent, and in such a manner, as is necessary for the Business Purposes in accordance with Sims’ written instructions from Authorized Persons. The Contractor will not process the Data for any other purpose or in a way that does not comply with this DPA or the Data Protection Legislation. The Contractor must promptly notify Sims if, in its opinion, Sims’ instruction would not comply with the Data Protection Legislation.

3.2  The Contractor must promptly comply with any Sims request or instruction from Authorized Persons requiring the Contractor to amend, transfer, delete or otherwise process the Data, or to stop, mitigate or remedy any unauthorized processing.

3.3  The Contractor will maintain the confidentiality of all Data and will not disclose Data to third parties unless Sims or this DPA specifically authorizes the disclosure, or as required by law. If a law, court, regulator or supervisory authority requires the Contractor to process or disclose Data, the Contractor must first inform Sims of the legal or regulatory requirement and give Sims an opportunity to object or challenge the requirement, unless the law prohibits such notice.

3.4  The Contractor will reasonably assist Sims with meeting Sims’ compliance obligations under the Data Protection Legislation, taking into account the nature of the Contractor’s processing and the information available to the Contractor, including in relation to Data Subject rights, data protection impact assessments and reporting to and consulting with supervisory authorities under the Data Protection Legislation.

3.5  The Contractor must promptly notify Sims of any changes to Data Protection Legislation that may adversely affect the Contractor’s performance of the Agreement.

3.6  The Contractor will only collect Data for Sims using a notice or method that Sims specifically pre-approves in writing, which contains an approved data privacy notice informing the Data Subject of Sims’ identity and its appointed data protection representative, the purpose or purposes for which their Data will be processed, and any other information that, having regard to the specific circumstances of the collection and expected processing, is required to enable fair processing. The Contractor will not modify or alter the notice in any way without Sims’ prior written consent.

4. PROVIDER’S EMPLOYEES

4.1  The Contractor will ensure that all employees:

(a)  are informed of the confidential nature of the Data and are bound by confidentiality obligations and use restrictions in respect of the Data;

(b)  have undertaken training on the Data Protection Legislation relating to handling Data and how it applies to their particular duties; and

(c)  are aware both of the Contractor’s duties and their personal duties and obligations under the Data Protection Legislation and this DPA.

4.2  The Contractor will take reasonable steps to ensure the reliability, integrity and trustworthiness of and conduct background checks consistent with applicable law on all of the Contractor’s employees with access to the Data.

5. SECURITY

5.1  The Contractor must at all times implement appropriate technical and organisational measures against unauthorized or unlawful processing, access, disclosure, copying, modification, storage, reproduction, display or distribution of Data, and against accidental or unlawful loss, destruction, alteration, disclosure or damage of Data including, but not limited to, the security measures set out in Annex B. The Contractor must document those measures in writing and periodically review them to ensure they remain current and complete, at least annually.

5.2  The Contractor must implement such measures to ensure a level of security appropriate to the risk involved, including as appropriate:

(a)  the pseudonymisation and encryption of Data;

(b)  the ability to ensure the ongoing confidentiality, integrity, availability and resilience of processing systems and services;

(c)  the ability to restore the availability and access to Data in a timely manner in the event of a physical or technical incident; and

(d)  a process for regularly testing, assessing and evaluating the effectiveness of security measures.

6. DATA BREACH

6.1  The Contractor will promptly and without undue delay notify Sims if any Data is lost or destroyed or becomes damaged, corrupted, or unusable. The Contractor will restore such Data at its own expense.

6.2  The Contractor will immediately and without undue delay, but in no event later than 24 hours, notify Sims if it becomes aware of:

(a)  any accidental, unauthorized or unlawful processing of the Data; or

(b)  any Data Breach.

6.3  Where the Contractor becomes aware of (a) and/or (b) above, it shall, without undue delay, also provide Sims with the following information:

(a)  description of the nature of (a) and/or (b), including the categories and approximate number of both Data Subjects and Data records concerned;

(b)  the likely consequences; and

(c)  description of the measures taken, or proposed to be taken to address (a) and/or (b), including measures to mitigate its possible adverse effects.

6.4  Immediately following any unauthorized or unlawful Data processing or Data Breach, the parties will co-ordinate with each other to investigate the matter. The Contractor will reasonably co-operate with Sims in Sims’ handling of the matter, including:

(a)  assisting with any investigation;

(b)  providing Sims with physical access to any facilities and operations affected;

(c)  facilitating interviews with the Contractor’s employees, former employees and others involved in the matter;

(d)  making available all relevant records, logs, files, data reporting and other materials required to comply with all Data Protection Legislation or as otherwise reasonably required by Sims; and

(e)  taking reasonable and prompt steps to mitigate the effects and to minimize any damage resulting from the Data Breach or unlawful Data processing.

6.5  The Contractor will not inform any third party of any Data Breach without first obtaining Sims’ prior written consent, except when required to do so by law.

6.6  The Contractor agrees that Sims has the sole right to determine:

(a)  whether to provide notice of the Personal Data Breach to any Data Subjects, supervisory authorities, regulators, law enforcement agencies or others, as required by law or regulation or in Sims’ discretion, including the contents and delivery method of the notice; and

(b)  whether to offer any type of remedy to affected Data Subjects, including the nature and extent of such remedy.

6.7  The Contractor will cover all reasonable expenses associated with the performance of the obligations under Clause 6.2 and Clause 6.4 unless the matter arose from Sims’ specific instructions, negligence, willful default or breach of this DPA, in which case Sims will cover all reasonable expenses.

6.8  The Contractor will also reimburse Sims for actual reasonable expenses that Sims incurs when responding to a Data Breach to the extent that the Contractor caused such a Data Breach, including all costs of notice and any remedy as set out in Clause 6.6.

7. CROSS-BORDER TRANSFERS OF DATA

7.1   Contractor (or any subcontractor) must not transfer to or otherwise process Data in a country other than the Domicile Country without obtaining Sims’ prior written consent.  As used herein, “Domicile Country” is the country the Sims legal entity identified in the Agreement is domiciled within.  If the Domicile Country is one of the countries within the scope of the data protection laws of the European Economic Area, then all other countries within the scope of the data protection laws of the European Economic Area, excluding countries not approved as providing adequate protection for Data by the European Commission from time-to-time, are deemed to also be included within the Domicile Country as well.  If the Domicile Country is one of: the United States of America, Canada, the United Kingdom, Australia, New Zealand, Singapore, India, Mexico, Japan, or Brazil, then all other countries explicitly authorized by the Data Protection Legislation, excluding countries not approved as providing adequate protection for Data by the Data Protection Legislation from time-to-time, are deemed to also be within the Domicile Country as well.

7.2  Where such consent is granted, the Contractor may only Process, or permit the Processing, of Data outside the Domicile Country where the conditions of the transfer otherwise complies with the Data Protection Legislation for the reasons set out in Annex A.

7.3  If any Data transfer between Sims and the Contractor requires execution of a document in order to comply with the Data Protection Legislation, the Parties will complete all relevant details in, and execute, the document, and take all other actions required to legitimize the transfer.

8. SUBCONTRACTORS

8.1  The Contractor may only authorize a third party (subcontractor) to process the Data if:

(a)  Sims provides prior written consent prior to the appointment of each subcontractor;

(b)  the Contractor enters into a written contract with the subcontractor that contains terms substantially the same as those set out in this DPA, in particular, in relation to requiring appropriate technical and organisational data security measures, and, upon Sims’ written request, provides Sims with copies of such contracts;

(c)  the Contractor maintains control over all Data it entrusts to the subcontractor; and

(d)  the subcontractor’s contract terminates automatically on termination of this DPA for any reason.

8.2  Those subcontractors approved as at the commencement of this DPA are as set out in Annex A. The Contractor must list all approved subcontractors in Annex A and include any subcontractor’s name and location and contact information for the person responsible for privacy and data protection compliance.

8.3  Where the subcontractor fails to fulfil its obligations under such written agreement, the Contractor remains fully liable to Sims for the subcontractor’s performance of its DPA obligations.

8.4  The Parties consider the Contractor to control any Data controlled by or in the possession of its subcontractors.

8.5  On Sims’ written request, the Contractor will audit a subcontractor’s compliance with its obligations regarding Sims’ Data and provide Sims with the audit results.

9. COMPLAINTS, DATA SUBJECT REQUESTS AND THIRD PARTY RIGHTS

9.1  The Contractor must, at no additional cost, take such technical and organisational measures as may be appropriate, and promptly provide such information to Sims as Sims may reasonably require, to enable Sims to comply with:

(a)  the rights of Data Subjects under the Data Protection Legislation, including subject access rights, the rights to rectify and erase Personal Data, object to the processing and automated processing of personal data, and restrict the processing of Personal Data; and

(b)  information or assessment notices served on Sims by any supervisory authority under the Data Protection Legislation.

9.2  The Contractor must notify Sims immediately if it receives any complaint, notice or communication that relates directly or indirectly to the processing of the Data or to either Party’s compliance with the Data Protection Legislation.

9.3  The Contractor must notify Sims within two (2) working days if it receives a request from a Data Subject for access to their Personal Data or to exercise any of their related rights under the Data Protection Legislation.

9.4  The Contractor will give Sims its full co-operation and assistance in responding to any complaint, notice, communication or Data Subject request.

9.5  The Contractor must not disclose the Personal Data to any Data Subject or to a third party other than at Sims’ request or instruction, as provided for in this DPA or as required by law.

10. TERM AND TERMINATION

10.1  This DPA will remain in full force and effect so long as:

(a)  the Agreement remains in effect, or

(b)  the Contractor retains any Data related to the Agreement in its possession or control (this Clause 10.1 defining the “DPA-Term”).

10.2  Any provision of this DPA that expressly or by implication should come into or continue in force on or after termination of the Agreement in order to protect Data will remain in full force and effect.

10.3  The Contractor’s failure to comply with the terms of this DPA is a material breach of the Agreement. In such event, Sims may terminate the Agreement effective immediately on written notice to the Contractor without further liability or obligation.

10.4  If a change in any Data Protection Legislation prevents either party from fulfilling all or part of its Agreement obligations, the parties will suspend the processing of Data until that processing complies with the new requirements. If the parties are unable to bring the Data processing into compliance with the Data Protection Legislation within sixty (60) days, they may terminate the Agreement on written notice to the other party.

11. DATA RETURN AND DESTRUCTION

11.1  At Sims’ request, the Contractor will give Sims a copy of or access to all or part of Sims’ Data in its possession or control in the format and on the media reasonably specified by Sims.

11.2  On termination of the Agreement for any reason or expiry of its term, the Contractor will securely delete or destroy or, if directed in writing by Sims, return and not retain, all or any Data related to this DPA in its possession or control.

11.3  If any law, regulation, or government or regulatory body requires the Contractor to retain any documents or materials that the Contractor would otherwise be required to return or destroy, it will notify Sims in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.

11.4  The Contractor will certify in writing that it has destroyed the Data within seven (7) days after it completes the destruction.

12. RECORDS

12.1  The Contractor will keep detailed, accurate and up-to-date written records regarding any processing of Data it carries out for Sims, including but not limited to, the access, control and security of the Data, approved subcontractors and affiliates, the processing purposes, categories of processing, any transfers of Data to a third country and related safeguards, and a general description of the technical and organisational security measures referred to in Clause 5.1 (Records).

12.2  The Contractor will ensure that the Records are sufficient to enable Sims to verify the Contractor’s compliance with its obligations under this DPA and the Contractor will provide Sims with copies of the Records upon request.

12.3  Sims and the Contractor must review the information listed in the Annexes to this DPA once a year to confirm its current accuracy and update it when required to reflect current practices.

13. AUDIT

13.1  The Contractor will permit Sims and its third-party representatives to audit the Contractor’s compliance with its DPA obligations, on at least ten (10) days’ notice, during the DPA-Term. The Contractor will give Sims and its third-party representatives all necessary assistance to conduct such audits. The assistance may include, but is not limited to:

(a)  physical access to, remote electronic access to, and copies of the Records and any other information held at the Contractor’s premises or on systems storing Data;

(b)  access to and meetings with any of the Contractor’s personnel reasonably necessary to provide all explanations and perform the audit effectively; and

(c)  inspection of all Records and the infrastructure, electronic data or systems, facilities, equipment or application software used to store, process or transport Data.

13.2  The notice requirements in Clause 13.1 will not apply if Sims reasonably believes that a Data Breach occurred or is occurring, or the Contractor is in breach of any of its obligations under this DPA or any Data Protection Legislation.

13.3  If a Data Breach occurs or is occurring, or the Contractor becomes aware of a breach of any of its obligations under this DPA or any Data Protection Legislation, the Contractor will:

(a)  promptly, conduct its own audit to determine the cause;

(b)  produce a written report that includes detailed plans to remedy any deficiencies identified by the audit;

(c)  provide Sims with a copy of the written audit report; and

(d)  remedy any deficiencies identified by the audit within twenty one (21) days.

13.4  At Sims’ written request, the Contractor will:

(a)  conduct an information security audit before it first begins processing any Data and repeat that audit on an annual basis;

(b)  produce a written report that includes detailed plans to remedy any security deficiencies identified by the audit;

(c)  provide Sims with a copy of the written audit report; and

(d)  remedy any deficiencies identified by the audit within twenty one (21) days.

13.5 On Sims’ written request, the Contractor will make all of the relevant audit reports available to Sims for review.

13.6  The relevant audit reports include as applicable: The Contractor’s latest Payment Card Industry (PCI) Compliance Report, WebTrust, Systrust, Statement on Standards for Attestation Engagements (SSAE) No. 16 audit reports for Reporting on Controls at a Service Organisation, and reports relating to its ISO/IEC 27001 certification.

13.7  The Contractor will promptly address any exceptions noted in the audit reports with the development and implementation of a corrective action plan by the Contractor’s management.

14. WARRANTIES

14.1  The Contractor warrants and represents that:

(a)  its employees, subcontractors, agents and any other person or persons accessing Data on its behalf are reliable and trustworthy and have received the required training on the Data Protection Legislation relating to the Data;

(b)  it and anyone operating on its behalf will process the Data in compliance with the Data Protection Legislation and other laws, enactments, regulations, orders, standards and other similar instruments;

(c)  it has no reason to believe that the Data Protection Legislation prevents it from providing any of the Agreement’s contracted services; and

(d)  considering the current technology environment and implementation costs, it will take appropriate technical and organisational measures to prevent the unauthorized or unlawful processing of Data and the accidental loss or destruction of, or damage to, Data, and ensure a level of security appropriate to:

(i)  the harm that might result from such unauthorized or unlawful processing or accidental loss, destruction or damage;

(ii)  the nature of the Data protected; and

(iii)  comply with all applicable Data Protection Legislation and its information and security policies, including the security measures required in Clause 5.1.

14.2  Sims warrants and represents that the Contractor’s expected use of the Data for the Business Purposes and as specifically instructed by Sims will comply with the Data Protection Legislation.

15. INDEMNIFICATION

15.1  The Contractor agrees to indemnify, keep indemnified and defend at its own expense Sims against all costs, claims, damages or expenses incurred by Sims or for which Sims may become liable due to any failure by the Contractor or its employees, subcontractors or agents to comply with any of its obligations under this DPA or the Data Protection Legislation.

15.2  Any limitation of Contractor’s liability set forth in the Agreement will not apply to this DPA’s indemnity or reimbursement obligations.

16. NOTICE

16.1  Any notice or other communication given to a party under or in connection with this DPA must be in writing and delivered to the notice address of the Agreement.

16.2  Clause 16.1 does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

16.3  A notice given under this DPA is not valid if sent by email.

ANNEX A

DATA PROCESSING PURPOSES AND DETAILS

Duration of the processing

The Data Processed by Contractor will be processed for the duration of the engagement.

Data subjects

The Data transferred concern the following categories of Data Subjects:

Employees, freelancers and contractors of Sims;

Authorized Users and other participants from time-to-time to whom Sims has granted the right to access the Services in accordance with the Agreement;

End user customers of Sims and individuals with whom those end users customers communicate with by email and/or instant messaging;

Service providers of Sims.

Other individuals to the extent identifiable in the content of emails or their attachments or in archiving content.

Categories of data

The Data transferred concern at a minimum, the following categories of data (please specify):

Personal details, names, user names, passwords, email addresses of Authorized Users

Personal Data derived from the Authorized Users use of the Services such as records and business intelligence information.

Personal Data within email and messaging content which identifies or may reasonably be used to identify, Data Subjects. 

Metadata including sent, to, from, date, time, subject, which may include Personal Data.

Special categories of data (if appropriate)

The Data transferred concern the following special categories of Data:

As stated in the SOW.  

When not stated in the SOW, no sensitive Data or special categories of Data are intended to be transferred, but may be contained in the content of files accessed by Contractor or in attachments to email.

Processing operations

The Data transferred will be subject to the following basic processing activities:

Data will be Processed to the extent necessary to provide Services in accordance with this DPA, the Agreement and Sims’ instructions. The Contractor Processes Data only on behalf of Sims.

Technical support, Issue diagnosis and error correction to ensure the efficient and proper running of the systems and to identify, analyze and resolve technical issues both generally in the provision of the Services and specifically in answer to a customer query.  This operation relates to all aspects of Data which is Processed but will be limited to metadata where possible by the nature of any request.

Virus, anti-spam and malware checking in accordance with the Services provided. This operation relates to all aspects of Data that is Processed.

URL scanning for the purposes of the provision of targeted threat protection and similar service which may be provided under the DPA.  This operation relates to attachments and links in emails and will relate to any Data within those attachments or links which could include all categories of Personal Data.

Approved Subcontractors:

• Only as agreed upon in writing

ANNEX B

SECURITY MEASURES

• Always no less stringent than all of those stated elsewhere in the Agreement or SOW and as required by law.

VI. CONSULTING SERVICES TERMS AND CONDITIONS

1. Subject to subsections i, ii, and iii below, if the Work includes providing Sims with Consulting Services, the following Consulting Services Terms and Conditions shall apply in addition to the General Terms and Conditions. In the event the Work includes other categories of Work other than Consulting Services

(i) For Work which is Engineering Services, the Engineering Services Terms and Conditions always apply instead of these Consulting Services Terms and Conditions.

(ii) Subject to clause (i), if the SOW explicitly refers to a specific portion of the Work as ‘Consulting’, in the event of any conflict between these Consulting Services Terms and Conditions and any other Terms and Conditions, these Consulting Services Terms and Conditions shall control for the so-referenced Work.

(iii) Subject to clause (ii), if the SOW does not explicitly refer to any portion of the Work as ‘Consulting’, in the event of any conflict between these Consulting Services Terms and Conditions and any other Terms and Conditions other than the General Terms and Conditions:

(a) if the Work does not occur at a Sims Facility those other Terms and Conditions shall control.

(b) if the Work does occur at a Sims Facility these Consulting Services Terms and Conditions shall control.

2. “Consulting Services” means services where an independent contractor is hired for their specific specialty to advise Sims on a subject but is not formally employed by the company. Consultant understands that Sims intends to rely on the advice provided by the Consulting Services and that such advice is, to the best of Consultant’s knowledge, accurate, complete, and adequate and Sims may rely on such information without independent verification.

2.1    Sims hereby engages Contractor (hereinafter “Consultant”), and Consultant hereby accepts such engagement, only as an independent contractor.  Sims shall not control the manner or means by which Consultant performs the Consulting Services.

2.2    Unless otherwise set forth in writing, Consultant shall furnish, at Consultant’s own expense, the equipment, supplies and other materials used to perform the Consulting Services. Sims shall provide Consultant with access to its premises and equipment to the extent necessary for the performance of the Consulting Services.

2.3    To the extent Consultant performs any Consulting Services on Sims’s premises or using the Sims’s equipment, Consultant shall comply with all applicable Sims policies relating to business and office conduct, health and safety and use of Sims facilities, supplies, information technology, equipment, networks and other resources.

3. Consultant is solely responsible for any travel or other costs or expenses incurred by Consultant in connection with the performance of the Consulting Services, and in no event shall the Company reimburse Consultant for any such costs or expenses, unless Consultant receives express, prior written approval from Company.

4. To the extent that any of Consultant’s pre-existing materials are contained in the Deliverables, Consultant retains ownership of such pre-existing materials and hereby grants to Sims an irrevocable, worldwide, unlimited, royalty-free license to use, publish, reproduce, display, distribute copies of, and prepare derivative works based upon, such pre-existing materials and derivative works thereof. Sims may assign, transfer, and sublicense such rights to others without Consultant’s approval.

5. Except for such pre-existing materials previously identified in writing, Consultant has no right or license to use, publish, reproduce, prepare derivative works based upon, distribute, perform, or display any Deliverables. Except to the extent necessary to perform the Consulting Services, Consultant has no right or license to use Company’s trademarks, service marks, trade names, logos, symbols or brand names.

6. Acceptance

6.1    Each Deliverable shall conform in all material respects with the specifications set forth in the Agreement or as otherwise agreed by the Parties in writing (“Specifications”). Within thirty (30) days from receipt of a Deliverable, Sims shall provide Consultant with (i) written approval of such Deliverable or (ii) a written statement identifying in reasonable detail the deficiencies preventing approval (“Deficiencies”).

6.2    Consultant shall have thirty (30) days from the date it receives a notice of Deficiencies to complete corrective actions in order for such Deliverable to conform in all material respects to the applicable Specifications (“Correction Period”). Sims shall complete its review of the corrected Deliverable and notify Consultant in writing of acceptance or rejection in accordance with this Section 6.

6.3    If Consultant is unable to correct the Deficiencies in a Deliverable within the Correction Period, Sims shall be entitled, at its option, to a refund or credit of Fees paid to Consultant hereunder with respect to the Services giving rise to such Deliverable.

7. Espionage Act

7.1    Notice of Immunity under the Economic Espionage Act of 1996, as amended by the Defend Trade Secrets Act of 2016. Notwithstanding any other provision of this Agreement:

7.1.1 Consultant will not be held criminally or civilly liable under any federal or state trade secret law for any disclosure of a trade secret that:

7.1.1.1        is made: (A) in confidence to a federal, state, or local government official, either directly or indirectly, or to an attorney; and (B) solely for the purpose of reporting or investigating a suspected violation of law; or

7.1.1.2        is made in a complaint or other document that is filed under seal in a lawsuit or other proceeding.

7.1.2 If Consultant files a lawsuit for retaliation by Sims for reporting a suspected violation of law, Consultant may disclose Sims’ trade secrets to Consultant’s attorney and use the trade secret information in the court proceeding if Consultant:

7.1.2.1        files any document containing the trade secret under seal; and

7.1.2.2        does not disclose the trade secret, except pursuant to court order.

8. Representations and Warranties

8.1    Consultant represents and warrants to Sims that:

8.1.1 Consultant has the right to enter into this Agreement, to grant the rights granted herein and to perform fully all of Consultant’s obligations in this Agreement;

8.1.2 Consultant’s entering into this Agreement with Sims and Consultant’s performance of the Consulting Services do not and will not conflict with or result in any breach or default under any other agreement to which Consultant is subject;

8.1.3 Consultant has the required skill, experience and qualifications to perform the Consulting Services, Consultant shall perform the Consulting Services in a professional and workmanlike manner in accordance with best industry standards for similar services and Consultant shall ensure that the Consulting Services are performed in a timely and reliable manner;

8.1.4 Consultant shall perform the Consulting Services in compliance with all applicable federal, state and local laws, regulations and ordinances;

8.1.5 Company will receive good and valid title to all Deliverables, free and clear of all encumbrances and liens of any kind; and

8.1.6 all Deliverables are and shall be Consultant’s original work (except for material in the public domain or provided by Sims) and do not and will not violate or infringe upon the Intellectual Property Right or any other right whatsoever of any person, firm, corporation, or other entity.

9. Indemnification

9.1    In addition to and without limiting any other indemnities in this Agreement, Consultant shall defend, indemnify and hold harmless Sims Indemnitees from and against all Losses arising out of or resulting from:

9.1.1 bodily injury, death of any person or damage to real or tangible, personal property resulting from Consultant’s acts or omissions; and

9.1.2 Consultant’s breach of any representation, warranty or obligation under this Agreement.

9.2    Sims may satisfy such indemnity (in whole or in part) by way of deduction from any payment due to Consultant.

10.1 Time

10.1  Time is of the essence in relation to all Consulting Services. If Consultant fails to meet the relevant deadlines, in addition to any other rights under this Agreement, Company may:

10.1.1         refuse to accept any subsequent performance under this Agreement;

10.1.2         purchase substitute Consulting Services from elsewhere (and reclaim from Consultant any additional costs incurred as a result of procuring such Consulting Services from a third party);

10.1.3         hold Consultant accountable for any loss and additional costs incurred; and

10.1.4         have any sums previously paid by Sims in respect of the affected Consulting Services refunded.

11. Other Business Activities

11.1  Consultant may engage or employ in any other business, trade, profession or other activity which does not place Consultant in a conflict of interest with Sims; provided, that, during the Term, Consultant shall not be engaged in any business activities that do or may compete with the business of Sims or perform any services for direct competitors of Sims.

Last updated: 2 August 2024