TERMS & CONDITIONS FOR PRODUCT STEWARDSHIP SCHEME - CHARGED BULK IMPORTERS
1.1 In this Agreement the following expressions have the meanings assigned to them:
- "Accountant" means Price Waterhouse Coopers or such other accountant nominated by RRA in writing to the Contributor for purposes of this Agreement from time to time.
- "Date of Termination" means the date on which this Agreement is terminated pursuant to Clause 7.
- "Destroy" and "Destruction" means the safe destruction or transformation of a substance in accordance with applicable environmental protection laws.
- "Exported" means the exportation from Australia and "Export" has a corresponding meaning.
- "GST" means Goods and Services Tax.
- "Imported" means importation to Australia.
- "Levy" means the levy at the rate agreed to be paid pursuant to Clause 2.1, as varied from time to time pursuant to Clause 2.2, which at the date of this Agreement is at the rates set out in the Schedule to this Agreement.
- "Manufacture" means manufacture in Australia.
- "Month" means a period commencing on the first day of a calendar month and ending on the last day of that calendar month and shall include the period between the first day of the month in which termination of this Agreement occurs and the Date of Termination.
- "Recovered Refrigerant" means Refrigerant which is used, contaminated, and/or unwanted refrigerant which is received for recycling or destruction by RRA, its agents or by wholesalers of Refrigerants.
- "Recycling" means the transformation of a substance to a state whereby it may be used again for its original purpose or for other purposes.
- "Refrigerant" means fluorocarbon substances, ozone depleting substances, synthetic greenhouse gases, chlorofluorocarbons, hydrochlorofluorocarbons, hydroflurocarbons, perflourocarbons when used for the purposes of air-conditioning or refrigeration whether existing alone or in a mixture.
- "Remittance Advice" means the remittance advice in Annexure A or as otherwise designated by RRA from time to time.
- "RRA Logo" means RRA's trade mark set out in the Schedule or such other logo specified by RRA by notice in writing to the Contributor from time to time.
- "Scheme" means the scheme for the recovery and destruction or recycling of Refrigerants administered by RRA.
- "Sold" means the supply to any person or company in Australia of Refrigerant which was Imported or Manufactured by the Contributor.
- "Tax Invoice" has the same meaning as in the A New Tax System (Goods and Services Tax) Act.
1.2 An expression which denotes the singular includes the plural and vice versa; words relating to any gender include the other genders and words relating to natural persons include associations of persons having corporate status by statute or by common law; clause headings are for convenience only and shall be ignored in its interpretation.
2. AGREEMENT TO CONTRIBUTE LEVY
- 2.1 The Contributor agrees to pay to RRA a levy of Two Dollars ($2.00) GST exclusive per kilogram of Refrigerant Sold by the Contributor.
- 2.2 RRA shall have the right from time to time by giving notice in writing to the Contributor to vary (whether by increase or decrease) the amount of the Levy and such varied Levy shall come into effect for each Month subsequent to the Month in which such notice is given.
- 2.3 The Contributor shall pay the Levy within 60 days of the end of the Month in which the Refrigerant is Sold.
- 2.4 The Contributor will receive a credit for the Levy paid for any Refrigerant that is Exported within twelve (12) month of the payment
3. PAYMENT PROCEDURES
3.1 The Levy shall be paid by one of the following methods following payment instructions on Remittance Advice in Annexure A:
(a) By cheque to RRA sent to RRA at the following address or to such other address as RRA shall notify from time to time in writing to the Contributor:
- Refrigerant Reclaim Australia
- GPO Box 753
- Canberra ACT 2601
(b) By direct deposit to the following branch account or other such account as RRA shall notify from time to time in writing to the Contributor.
- National Australia Bank
- Account Number: 57-981-4344
- BSB Number: 082-902
Each levy payment shall be accompanied by a duly completed Remittance Advice in the form of Appendix A.
3.2 If during the Month, the Contributor shall not have Sold any Refrigerant on which Levy is payable, the Contributor shall submit a Remittance Advice which shows a "Nil Return" by the thirtieth day after the end of any such Month.
3.3 RRA will issue the Contributor a Tax Invoice within thirty (30) days of receipt of a Remittance Advice.
4.1 The Contributor shall keep full, complete and accurate records of:
- (a) Refrigerant Sold by it following the date of this Agreement,
- (b) Refrigerant Exported by it following the date of this Agreement,
4.2 The Contributor shall, if requested by a notice in writing at any time from RRA to do so, permit the Accountant to examine the books and records of the Contributor kept in accordance with Clause 4.1 hereof during normal business hours provided that RRA shall bear the expense of any such examination of the books and records requested by it under this Clause.
5. AUDIT AND ADJUSTMENT OF LEVY
RRA may at any time and from time to time nominate the Accountant to audit the amount of Levy properly payable by the Contributor pursuant to this Agreement. To the extent that any amount properly payable under this Agreement is greater than the amount remitted by the Contributor to the date of audit then the Contributor shall within thirty (30) days of notification of the results of the audit by RRA pay the shortfall between the audited amount and the amount actually remitted to RRA together with interest calculated in accordance with Clause 6 on the amount required to be paid under this Clause. If the Levy paid by the Contributor is greater than the Levy required to be paid on the basis of the audit, then the Contributor may deduct the overpayment from future payments of Levy required to be made to RRA pursuant to this Agreement. Save for manifest error, the Contributor agrees to be bound by a certificate in writing from the Accountant appointed for the purposes of this Clause as to any amount which may be payable or deducted pursuant to this Clause.
6. INTEREST ON OVERDUE MONEY
If the Contributor defaults for more than fourteen (14)days in payment of any Levy payable or is liable to pay a shortfall in the Levy as a result of any audit pursuant to Clause 5, the Contributor shall pay to RRA interest at the rate of 8 per cent per annum (8% pa) as calculated on the amount in default from the time when the Levy became due for payment hereunder until it is paid. The right to interest pursuant to this Clause shall be without prejudice to any other rights and remedies of RRA to require payment of any Levy not paid by the due date and in respect of which interest is payable.
7. TERMINATION OF AGREEMENT
- 7.1 This Agreement may be terminated by either party in one hundred & eighty (180) days by giving notice of termination in writing to the other party.
- 7.2 Either party may terminate this Agreement by serving written notice on the other party if:
- (a) the other party breaches this Agreement and does not make good the breach within thirty (30) calendar days of receiving a written notice from the first party setting out the breach and requiring it to be rectified, or
- (b) the other party is subject to an order for winding up or resolves to go into liquidation or has a receiver, receiver and manager or administrator appointed in respect of its affairs and/or assets or is otherwise insolvent.
- 7.3 Without limiting RRA's other rights and remedies set out in this Agreement or at law, if the Contributor fails to report to RRA its Imports or fails to pay the Levy in accordance with this Agreement RRA will be entitled to suspend the Contributor's participation in the Scheme for such period as RRA may see fit.
- 7.4 Any termination pursuant to Clause 7.1 shall be without prejudice to the obligations of the Contributor under this Agreement up to the Date of Termination and the provisions of Clauses 4, 5, 8 and 10 shall continue to apply after termination.
- 8.1 Subject to clause
- 8.2 RRA shall keep secret and confidential and shall not directly or indirectly disclose to any third party or use for a purpose other than as set out in this Agreement without the prior written consent of the Contributor any information relating to the business affairs or operations of the Contributor of which RRA may become aware as a result of this Agreement.
- 8.2 RRA is authorized to provide to the Commonwealth Government and its departments and agencies any and all information relating to the Contributor's participation in the Scheme, volumes of Imports, and payments of Levies. Without limiting the generality of this clause RRA can provide the specified information to the Department of the Environment and Water Resources.
- 8.3 RRA shall, if requested by notice in writing from the Contributor to do so, require the Accountant to execute a Deed in favour of the Contributor giving such Contributor an undertaking to observe and ensure that its employees observe the confidentiality requirements which RRA is required to observe hereunder and to take or cause to be taken such reasonable precautions as the Contributor may specifically require in order to maintain confidentiality of information provided for the purposes of this Agreement and to prevent its disclosure or use.
- 8.4 Notwithstanding anything herein contained however, confidentiality obligations set out herein or in any Deed executed by the Accountant shall not apply in respect of information which is or becomes part of the public domain other than as a result of a breach by RRA or the Accountant or is required to be disclosed by law.
- 8.5 RRA acknowledges that information included in any Remittance Advice form submitted pursuant to this Agreement is of a commercially sensitive nature and is therefore made available by the Contributor only for the purposes of calculation of Levy agreed to be paid hereunder and for no other purpose but subject to the rights of disclosure in clause 8.2.
9.USE OF LOGO
- 9.1 The Contributor may be entitled during the term of this Agreement to use the RRA Logo in its promotional materials, stationery and vehicles subject to the terms and conditions set out in the Schedule and such other reasonable directions of RRA from time to time.
- 9.2 Except as expressly permitted by this Agreement the Contributor will not be entitled to exercise any of the powers specified in section 26(1) of the Trade Marks Act 1995 in relation to the RRA Logo.
10. RETURN OF PRODUCT
RRA will make available to the Contributor facilities to which Recovered Refrigerant (on which the Levy has been paid) can be returned, and operate the Scheme for the collection of Recovered Refrigerant, and RRA will thereafter be responsible for the Destruction or Recycling (as RRA deems appropriate) of that Recovered Refrigerant.
- 11.1 Effect of Waiver. No waiver by any party of any default in the strict and literal performance of or compliance with any provision, condition or requirements herein shall be deemed to be a waiver of strict and literal performance of or compliance with any other provision, condition or requirement nor to be a waiver of or in any manner a release of any other party from strict compliance with any provision, condition or requirement in the future nor shall any delay or omission by any party to exercise any right hereunder in any manner impair the exercise of any such right accruing to it thereafter.
- 11.2 Partial Invalidity In the event that any provision of this Agreement or its application to any person or circumstance is or is found to be invalid or unenforceable the invalidity or unenforceability of such provision shall not affect the validity or enforceability of the other provisions of this Agreement or the application of such provisions to any person or circumstance and the said other provisions shall remain in full force and effect.
- 11.3 Amendments No modification or amendment of any of the provisions of this Agreement shall be binding upon any of the parties unless and until the same has been made in writing and duly executed by all of the parties save that the provisions of this clause shall not apply to any variation in the amount of the Levy which RRA is entitled to require pursuant to Clause 2.2.
- 11.4 Governing Law This Agreement shall be governed by and construed in accordance with the laws for the time being in force in the Australian Capital Territory and the parties hereby irrevocably submit to the jurisdiction of the Courts of the said Territory including any Courts having appellate jurisdiction therefrom.
- 11.5 Counterparts This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together will constitute one and the same instrument.
- 11.6 Further Assurances Each party hereto agrees to do all such things and execute all such documents as may be necessary or desirable to give full effect to the provisions of this Agreement and the transactions contemplated by it.
- 11.7 Non Assignment No party to this Agreement shall assign or purport to assign any of its rights under this Agreement without the prior written consent of the other party.
All notices and other communications provided for or permitted hereunder shall be sent by certified or registered mail (airmail where appropriate) with postage pre-paid, by hand delivery or by facsimile transmission as follows:
- (a) if to RRA:
- General Manager
- Refrigerant Reclaim Australia Limited
- GPO Box 753
- Canberra ACT 2601
- Facsimile 02 6230 4533
- (b) if to Contributor.
- Honeywell Polymers (Australia) Pty Ltd
- Ground Floor,
- 71 Queens Road
- MELBOURNE VIC 3004
or to such other address or person as the particular party may specify by notice in writing to the others. All notices or communications posted to a place outside Australia shall be posted by airmail with airmail postage pre-paid. All such notices or communications shall be deemed to have been duly given or made:
- (i) in the case of a notice or communication served by post, three (3) days or, if posted to a place outside Australia, seven (7) days, after being deposited in the mail with postage pre-paid,
- (ii) in the case of hand delivery of a notice or communication served, by when delivered by hand,
- (iii) in the case of a notice or communication sent by facsimile transmission, on production of a transmission report by the machine from which the facsimile was sent which indicates that the facsimile was sent in its entirety to the facsimile number of the recipient unless within twenty-four(24) hours the recipient notifies the sender that the communication was not received either in its entirety or in legible form.