SIMS E-RECYCLING PTY LTD – TERMS AND CONDITIONS OF SERVICE AUSTRALIA
1.1 In the Service Agreement unless the context requires otherwise:
“Acceptance” means Products accepted by SLS for the Services in accordance with the procedures set out in this Services Agreement or any agreed Service Request. If no procedure is set out, Acceptance will constitute a written confirmation by SLS to the Customer that Products are in conformance with the Specification and accepted for the Services.
“Change Request Form” means a completed document substantially in the form as an addendum A to the Service Agreement.
“Commencement Date” means the date calculated in accordance with clause 2.2.
“Customer” means the customer to whom SLS is providing the Services under the Service Agreement and whose details are set out in Section 2 above.
“Excluded Products” means those products other than the Products, including without limitation, those products specified or defined as “Excluded Products” or any goods which SLS advises the Customer of from time to time.
“Fees” means the fees payable in respect of the Services as set out in section 4 of the Services Request or as otherwise as agreed in writing by the parties.
“Force Majeure” shall include, but is not necessarily limited to, any one or more of the following events: a war, revolution, insurrection, or any other unlawful act against public order or authority; a storm, fire, flood, earthquake, explosion, or lightening; a governmental restraint, or any other event (whether or not of the kind stated in this definition) which is not reasonably within the control of the party claiming suspension of its/their obligations hereunder.
“GST” means the goods and services tax imposed by the GST law as defined in the GST Act.
“GST Act” means A New Tax System (Goods and Services Tax) Act 1999 and all related and auxiliary legislation as amended from time to time.
“Packaging Guidelines” means SLS’s guidelines for packaging the Products in preparation for transportation as notified to the Customer from time to time.
“Premises” means the premises specified in the Service Request to where the Products will be delivered or where the Services .will be performed;
“Products” means the goods delivered to SLS upon which the Services are to be performed as detailed in the Service Request, including any part or parts thereof, and such other assets as the parties may from time to time agree in writing, but at all times excluding the Excluded Products.
“RCTI” means recipient created tax invoice consistent with the requirements of the GST Act.
“Services” means the services to be provided under the Service Agreement and described in the Services Request.
“Service Agreement” means the agreement between SLS and the Customer for the provision of the services set out in section 4 of the Service Request on the terms of the Service Request and these Terms and Conditions of Service.
“Service Request” means the Service Request attached to these Terms and Conditions of Service.
“SLS (Sims Lifecycle Services)” is the trading name used to reference the legal entity of Sims E-Recycling Pty Ltd (ABN 74 114 176 493).
1.2 In the Service Agreement:
(a) terms defined in the Service Request shall also apply unless the context requires otherwise;
(b) the singular includes the plural and vice versa; and
(c) A reference to a party includes that party’s successors, legal personal representatives and permitted assigns.
2.1 SLS agrees to provide the Services to the Customer on the terms of the Service Agreement.
2.2 The Service Agreement commences on either:
(a) the date on which the Customer has executed the Service Request; or
(b) the date on which SLS commences providing the Services to the Customer and the Customer accepts those Services,
2.3 This Services Agreement shall continue until terminated in accordance with clause 8.
whichever is the earlier.
- PROVISION OF SERVICES
3.1 Upon commencement of the Services Agreement, SLS shall provide the Services at the locations and at or by the times specified in the Service Request.
3.2 SLS shall provide the Services with due care and skill and at least at a standard that a professional and competent person in the business of carrying out such activities would perform such Services.
3.3 Where Services are being provided in respect of certain goods or assets nominated by the Customer, the Customer must ensure that those goods or assets shall be made available to SLS at the time and location arranged for service. If such goods or assets are not available at the time or location arranged for service, SLS shall be entitled to charge, and the Customer must pay on request, any costs or damages incurred by SLS as a result of being unable to provide the Services in respect of the relevant goods and assets at the time and location arranged.
3.4 Where Services include data destruction services, the Customer acknowledges that a faulty hard drive may prevent SLS from writing to the drive, making secure data wiping impossible. In such circumstances the hard drive will be removed and destroyed.
3.5 The Customer is responsible for ensuring that the goods or assets provided for processing are those which the Customer intends be destroyed, recycled or resold.
4.1 Upon completion of Services or at such other time as agreed, SLS shall issue a tax invoice to the Customer for the Fees payable in respect of the Services completed.
4.2 The Customer must pay to SLS the Fees in respect of completed Services by electronic funds transfer to the bank account specified by SLS within  days of the date of the tax invoice issued by SLS for those Services.
4.3 The Customer shall also pay to SLS an amount on account of any GST payable in connection with the Fees, the Services provided or the Services Agreement on request.
4.4 If the Customer does not pay any or all of an amount payable under the Service Agreement by the date such amount was due, SLS may charge the Customer interest at the rate of 6% per annum calculated daily on such overdue amount, and the Customer shall pay such interest on request.
- RECIPIENT CREATED TAX INVOICES
5.1 Where remarketing services are provided by SLS as part of the Services, the Customer will be entitled to a rebate calculated in accordance with the Service Request.
5.2 If the parties agree and enter into an RCTI agreement, as part of issuing the settlement report SLS must provide the Customer an RCTI for the value of the rebates due to the Customer as a result of the remarketing of those Products which were able to be remarketed and SLS must, within 30 days of the date of the RCTI, either pay the amount of the rebates to the Customer or credit the Customer for that amount against other monies owed by the Customer to SLS.
5.3 If the parties do not agree to enter into an RCTI agreement, as part of issuing the settlement report SLS will notify the Customer of the value of the rebates due to the Customer for the remarketing of those Products which are able to be remarketed. Within 7 days of issuing the settlement report, the Customer must issue SLS with a valid tax invoice for the amount of that rebate, with such rebate to be paid by SLS within 30 days of the date of the invoice or credited to the Customer against other monies owed by the Customer to SLS.
6.2 The Customer acknowledges and agrees that SLS may sub-contract the performance of any part of the Services. SLS shall remain liable for obligations under the Service Agreement, in respect of any work performed by a subcontractor.
6.3 SLS performs its obligations under the Service Agreement as an independent contractor of the Customer. Nothing in the Service Agreement constitutes SLS and the Customer as partners, joint venturers, or principal and agent.
6.4 If a Force Majeure event prevents, affects, or may prevent or affect, the performance of any of the obligations of SLS under the Service Agreement, it shall promptly notify the Customer of its nature and extent. SLS shall be deemed not to be in breach of the Service Agreement, shall not be liable to the Customer, and the Service Agreement may be terminated, by reason of any delay in performance, or the non-performance, of any of the obligations of SLS under the Service Agreement, to the extent that the delay or non-performance is due to any Force Majeure, and the time for performance of that obligation shall be extended accordingly. If the performance by SLS of any of its obligations under the Service Agreement is affected by Force Majeure for a continuous period in excess of 3 (three) months, the parties shall enter into bona fide discussions with a view to alleviating its effects, or to agreeing upon such alternative arrangements as may be fair and reasonable.
6.5 SLS may deduct or set-off any amount owing to it by the Customer against any money held by it at any time for the Customer or otherwise owing by it to the Customer at any time. If the Customer fails to pay any amounts payable under the Service Agreement on or before the date required, and SLS holds in its possession or control any goods or assets of the Customer, SLS may retain possession of such goods or assets for so long as any amounts remain unpaid. If the Service Agreement has been terminated due to the Customer’s failure to pay any amounts payable under the Service Agreement or otherwise in accordance with clause 4. SLS may also sell any goods or assets of the Customer in its possession or control and apply the sales proceeds from such sale against any amounts owed by the Customer under the Service Agreement.
6.6 The Service Agreement shall be governed by the laws of New South Wales, and the parties submit to the non-exclusive jurisdiction of the courts in that place and courts competent to hear appeals from such courts.
6.7 Neither party may assign any of the rights or obligations under the Service Agreement, without the prior written consent of the other.
6.8 No variation, modification or waiver of any provision in the Service Agreement, nor consent to any departure by any party from any such provision, will be of any effect unless it is in writing, signed by the parties or in the case of a waiver, by the party giving it.
6.9 Subject to any terms implied by any statute which cannot be excluded under the Service Agreement, and any express agreement in writing between the parties, the Service Agreement embodies the entire understanding of the parties in respect of the subject matter of the Service Agreement.
7.1 To the extent permissible by law, SLS disclaims and excludes all express or implied conditions and warranties or other terms, conditions or representations in relation to the Services and any goods or services supplied pursuant to the Service Agreement other than those contained in the express terms of the Service Agreement.
7.2 SLS’s total liability to the Customer in relation to any matter connected with the Service Agreement or the subject matter of the Service Agreement, whether arising in contract, tort, pursuant to a statute or otherwise (except to the extent that the liability is a result of the wilful misconduct or fraud of SLS), is limited as follows:-
(a) in the case of goods supplied pursuant to the Service Agreement, or otherwise damaged or destroyed by SLS in the course of providing the Services, to any one or more of the following as SLS may in its absolute discretion select:-
i. the replacement of the goods or the supply of equivalent goods;
ii. the repair of the goods;
iii. the payment of the cost of replacing the goods or of acquiring equivalent goods;
iv. the payment of the cost of having the goods repaired; or
(b) in the case of any Services supplied pursuant to the Service Agreement, either of the following as SLS may in its absolute discretion select to: –
i. the supplying of the Services again; or
ii. the payment of the cost of having the Services supplied again.
7.3 Where any relevant statute provides that, notwithstanding the provisions of the Service Agreement, the liability of SLS to the Customer pursuant to that statute in relation to the Service Agreement, or the subject matter of the Service Agreement, varies from the liability referred to in the preceding clause, then the limitation of SLS’s total liability to the Customer pursuant to the preceding clause is hereby varied to the total liability provided for in that statute and any other liability whatsoever is hereby excluded.
7.4 Neither of the parties shall be liable to the other for any indirect, incidental, special or consequential damages including but not limited to loss of profits or revenue, loss of use of the equipment or any associated equipment, or costs of substituted goods, facilities, equipment or services which arise out of the performance or failure to perform any obligation contained within the Service Agreement, whether the claim is in contract, tort (including negligence), strict liability of otherwise except as expressly provided elsewhere under the Service Agreement.
8.1 At any time after the first anniversary of the Commencement Date, either party may terminate this Services Agreement by giving three (3) months’ written notice to the other.
8.2 SLS may upon written notice terminate the Service Agreement, or any portion thereof, if the Customer fails to pay when due any amounts payable pursuant to the Service Agreement, and such failure continues for a period of fifteen (15) days after the day that payment became due.
8.3 Either party may terminate the Service Agreement by giving 15 days prior written notice to the other party in the event of:(a) a material breach by the other party of any fundamental provision of the Service Agreement which has not been cured within fifteen (15) days after written notice is given to the defaulting party specifying the breach or default and requiring its remedy; or
7 (a) a material breach by the other party of any fundamental provision of the Service Agreement which has not been cured within fifteen (15) days after written notice is given to the defaulting party specifying the breach or default and requiring its remedy; or
- (b) if the other party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction; if the other party enters into an arrangement, compromise or composition with or makes an assignment for the benefit of its creditors; if a receiver, liquidator, official manager, trustee or similar agent is appointed with respect to any property, assets or business of either party; or if proceedings have commenced or a resolution passed for the winding up, dissolution, the appointment of a judicial manager or administrator of the other party.
8.4 Any termination of the Service Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
8.5 On the termination of the Service Agreement (howsoever occasioned), the Customer agrees to pay SLS the Fees relating to any Services rendered or performed thereunder up to and including the date of termination.
- CHANGE MANAGEMENT
9.1 If a party wishes to vary the Services set out in the Service Request (“Change Request”), that party (the “Requesting Party”) must provide a completed Change Request Form signed by an authorised representative of the Requesting Party to the other party containing details of the relevant change including without limitation a description of the change, reason(s) for the change and the effect the change will have on the Services at least  business days (or such other period as the parties may agree) prior to the date on which the change is proposed to take effect.
9.2 Within  business days of receiving a Change Request Form from the Requesting Party or within another period agreed by the parties, the party must notify the Requesting Party in writing specifying what impact the variations set out in the Change Request Form will have on the relevant Services including without limitation the impact (if any) on the party’s ability to meet Service milestones and any variation in Fees
9.3 Within  business days of receiving the notice, the Requesting Party must give the other party a written notice accepting or rejecting that party’s response
9.4 Any variation to the Service Agreement pursuant to a Change Request Form takes effect from the date on which the last party duly signs the Change Request Form upon which the Service Agreement shall be varied to the extent of the changes set out therein in accordance with clause 6.8
- DATA ERASURE AND HARD DRIVE DESTRUCTION
10.1 As part of the Services, SLS may, at the Customer’s request, perform data erasure or hard drive destruction services, either by overwriting the hard drives using a certified data erasure software application, Blancco, or physically damaging the hard drives in order to prevent their reuse. SLS will use industry standard techniques to erase the data on hard drives to the extent reasonably possible. To the greatest extent permitted by law, the Customer waives its rights to make any claim against and releases SLS, its officers, employees and agents from all liability whatsoever arising in the event that the data on a processed hard drive remains recoverable, is retrieved by a third party, or is otherwise disseminated where SLS has acted with reasonable care and skill in performing the data erasure services.
10.2 Where data is of a particularly sensitive nature, the Customer must inform SLS of this, and discuss which form of data destruction service SLS, if any, will be suitable or appropriate for the Customer’s particular case. Where the Customer provides a third party’s goods or assets, or goods or assets containing third party data, to SLS, it warrants that the performance of the Services on those goods or assets will not infringe the rights of any third party. The Customer indemnifies SLS and each of its officers, employees and agents (“those indemnified”) against any damage, loss, cost (including legal costs on a solicitor and own client basis) expense or liability which any of those indemnified may sustain as a result of any breach of this warranty.
- CUSTODY OF EQUIPMENT
11.1 SLS will take reasonable precautions to appropriately handle and transport the Customer’s goods or assets whilst they are in the possession of SLS. SLS does not, however, guarantee the security of the Customer’s goods or assets either before, during or after processing. The Customer releases SLS from all liability arising from, or consequential upon, the loss or unintentional dissemination of the Customer’s goods or assets.
- DELIVERY OF PRODUCTS BY CUSTOMER
12.1 Unless otherwise set out in the Service Request, the Customer will deliver the Products to the Premises as set out in the quotation. Delivery will take place when the Products are off-loaded at SLS’s premises (“Delivery”). If requested to do so by the Customer, SLS will arrange collection on the Customer’s behalf at the Customer’s cost and will invoice the Client for the cost of such collection.
12.2 In the event that SLS arranges collection and transportation at the Customer’s request the Customer shall specify accurately the content of each consignment in such detail as SLS or its nominated carrier shall reasonably require in order to arrange appropriate transportation. In the absence of such information SLS shall be entitled to refuse or delay transportation until such information has been obtained or to transport Products by such means as it deems to be reasonable in the circumstances, and the Customer shall be fully accountable for any additional transportation and ancillary costs incurred by SLS resulting from the failure or delay by the Customer in providing such information. If SLS does not arrange for collection or transportation the Customer shall be solely responsible for obtaining all licences, registrations, approvals, consents or qualifications necessary to enable SLS or its nominated carrier to transport the Products in accordance with applicable Laws.
12.3 Unless otherwise stated in the Service Request, the Customer will be responsible for preparing the Products for transportation and in doing so shall comply with the Packaging Guidelines and all applicable Laws and recommendations in relation to safe and effective packaging, and for ensuring that no consignment of Products contains Excluded Products.
12.4 Without prejudice to this clause, the Products are subject to Acceptance as set out in the quotation. Delivery of the Products will not amount to Acceptance. For the avoidance of doubt SLS shall be under no obligation to Accept, and the Customer shall not provide or make available to SLS any Products which are themselves or are packaged or presented in any way which is hazardous or capable of causing harm to human health or to the environment.
12.5 Within a reasonable time of delivery of the Products, SLS will carry out an initial visual inspection and any other checks it requires. If the inspection and/or checks show that the Products comply with the quotation, then SLS will Accept the delivered Products.
12.6 Where the Products delivered to SLS do not comply with the Service Request or the Specification in whole or in part, or contain Excluded Products or are, in SLS’ reasonable opinion, not packaged safely, SLS will be under no obligation to Accept such Products or to attempt to separate the Products in that consignment.
12.7 Where the Products delivered to SLS do not comply with the Service Request or the Specification but are capable of being processed by SLS, SLS will have the right, in its discretion, to Accept the Products for processing and to charge the Customer a reasonable price for such processing.
12.8 If SLS does not Accept the Products pursuant to this clause, SLS will upon instruction from the Customer either dispose of such Products in line with applicable regulations or return them to the Customer at the Customer’s cost.
12.9 Unless otherwise agreed, the weight of any consignment of Products as recorded by SLS upon Acceptance of the Products at the Premises will be conclusive evidence of the weight of Products received by SLS and will form the basis of the Price calculation.
12.10 For the avoidance of doubt, a signature of receipt of a consignment by a representative of SLS on a carrier’s delivery note will not be evidence of the contents or weight of the consignment received at the Premises.
- RISK AND TITLE
13.1 Save where transportation is provided by SLS, the Customer will bear the risk of loss or damage to the Products during their delivery to and from the Premises.
13.2 Sims will bear the risk of loss or damage to the Products whilst the Products are located in the Premises. Sims will have no liability for the risk of loss or damage to Products in the Customer’s possession or under its control.
13.3 Except to the extent Products are simply to be assessed and returned to the Customer in accordance with the Service Request, in which case title shall not pass to SLS, title in the Products will transfer to SLS:
a) on unloading and after express Acceptance of the Products at the Premises by SLS, where the Customer allocates the Products for destructive recycling;
b) at the point of resale of the Products or part of the Products where the Products have been allocated for resale/remarketing by the Customer which has been confirmed by SLS (acting reasonably) as suitable for resale; or
c) where SLS is required to sort and/or assess the Products to determine if they are suitable for resale/remarketing or destructive recycling:
(i) at the point of resale of the Products or part of the Products if Sims (acting reasonably) determines the Products are suitable for resale/remarketing; or
(ii) at the point SLS allocates the Products for destructive recycling, if SLS (acting reasonably) determines the Products are only suitable for destructive recycling.
13.4 The Customer hereby warrants that it has good and complete title to the Products and that no third party has any interest in the Products.
13.5 The Customer will indemnify, and keep indemnified, SLS from and against all costs, expenses, liabilities, losses, damages, claims, demands, proceedings or legal costs (on a full indemnity basis) and judgments which SLS incurs or suffers due to any breach of clause 13.4