Terms & Conditions for product stewardship scheme - charged equipment importers

1. INTERPRETATION

1.1 In these Terms and Conditions the following expressions have the meanings assigned to them:

"Accountant" means PricewaterhouseCoopers or such other accountant nominated by RRA in writing to the Contributor for purposes of the Agreement from time to time.

"Agreement" means the Product Stewardship Scheme Agreement signed by the Contributor and countersigned by RRA.

"Charged Equipment" means any air conditioning or refrigeration equipment, motor vehicle or other equipment, component or part that contains Refrigerant.

"Contributor" means the equipment importer named in the Agreement.

"Date of Termination" means the date on which the Agreement is terminated in accordance with these Terms and Conditions.

"Destroy" and "Destruction" means the safe destruction or transformation of a substance in accordance with applicable environmental protection laws.

"GST" means Goods and Services Tax under A New Tax System (Goods and Services Tax) Act 1999.

"Exported" means the exportation from Australia and includes but is not limited to exportation from Australia within Charged Equipment and "Export" has a corresponding meaning.

"Imported" means importation into Australia and includes but is not limited to importation into Australia within Charged Equipment and "Import" has a corresponding meaning.

"Levy" means the levy and/or other fee to be paid pursuant to the Agreement, as varied from time to time by RRA in accordance with these Terms and Conditions, which at the date of the Agreement is at the rates set out the 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 the Agreement occurs and the Date of Termination.

"Quarter" is a period of three Months ending either 31 March, 30 June, 30 September or 31 December each year.

"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.

"Refrigerant Import Report Form" means the Refrigerant Import Report Form available for download from RRA’s website or as otherwise designated by RRA from time to time.

"RRA" means Refrigerant Reclaim Australia Limited (ACN 061 197 206).

"RRA Logo" means RRA's commonly used trade mark 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.

"Tax Invoice" has the same meaning as in the A New Tax System (Goods and Services Tax) Act.

"Terms and Conditions" means these terms and conditions.

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 will pay to RRA the Levy set out in the Agreement.

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 One Time Importer

The Contributor shall advise RRA on the number of kilograms and type of Refrigerant Imported at the time of signing agreement. Payment is required at this time.

2.3.1 Less than 100kg

The Contributor shall advise RRA on the number of kilograms and type of Refrigerant Imported at the time of signing agreement. Initial payment is required at the time of signing agreement. RRA will raise an annual invoice and payment is required as outlined on RRA’s invoice. Annual Invoice will be raised until you advise RRA of you withdrawal from the Product Stewardship Scheme.

If however, circumstances change such that you import more than 100kg within each twelve month period from the date of your agreement you would need to notify RRA and change your agreement to more than 100kg.

2.3.2 More than 100kg

The Contributor shall report to RRA on the number of kilograms and type of Refrigerant Imported using the Refrigerant Import Report Form by the fifteenth of the month immediately following the end of the Quarter in which the Refrigerant is Imported, and pay the Levy within thirty (30) days of the end of the Quarter in which the Refrigerant is Imported.

If however, within a 12 month (4 quarter period) your imports are less than 100kg, RRA will raise an invoice for the minimum amount applicable.

2.4 The Contributor will receive a credit for the Levy paid for any Refrigerant that is Exported in charged equipment within twelve (12) month of the payment.

3. PAYMENT PROCEDURES

3.1 The Levy shall be paid by one of the payment methods specified on RRA’s website or as otherwise designated by RRA from time to time.

3.2 If during the Quarter, the Contributor shall not have Imported any Refrigerant on which Levy is payable, the Contributor shall submit a Refrigerant Import Report Form which shows a "Nil Return" by the fifteenth of the month immediately following the end of the Quarter.

3.3 RRA will issue the Contributor a Tax Invoice upon receipt of the Refrigerant Import Report Form.

4. RECORDS

4.1 The Contributor shall keep full, complete and accurate records of:

(a) Refrigerant Imported by it following the date of the Agreement,

(b) Refrigerant Exported by it following the date of the Agreement,

(c) the amount of Levies remitted pursuant to the Agreement from time to time, and the basis on which such remittances are calculated.

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 these Terms and Conditions 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 the Agreement. To the extent that any amount properly payable under the 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 these Terms and Conditions 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 the 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 by or on behalf of RRA, the Contributor shall pay to RRA interest at the rate of eight per cent (8%) per annum 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 The Agreement may be terminated by either party by giving (90) days prior notice of termination in writing to the other party.

7.2 Either party may terminate the Agreement by serving written notice on the other party if:

(a) the other party breaches the 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 these Terms and Conditions or at law, if the Contributor fails to report to RRA its Imports or fails to pay the Levy in accordance with the 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 these Terms and Conditions shall be without prejudice to the obligations of the Contributor under the Agreement (including these Terms and Conditions) up to the Date of Termination and the provisions of Clauses 4 (Records), 5 (Audit) and 8 (Confidentiality) of these Terms and Conditions shall continue to apply after termination.

8. CONFIDENTIALITY

8.1 Subject to the immediately following subclause of these Terms and Conditions 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 the 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 the 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 the 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 the 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 this clause.

9. USE OF LOGO

9.1 The Contributor may be entitled during the term of the Agreement to use the RRA Logo in its promotional materials, stationery and vehicles subject to these Terms and Conditions and such other reasonable directions of RRA from time to time.

9.2 The Contributor will:

(a) use the RRA Logo strictly in accordance with the graphics kit (if any) provided by RRA to the Contributor from time to time;

(b) not use the RRA Logo in conjunction with any other trade mark, logo or name in such a way as might suggest a connection between the two; and

(c) not to use the RRA Logo in such a way as to suggest or represent that the Contributor is the employee or agent of RRA or that the Contributor has authority to bind RRA in any dealings with third parties or that the Contributor has any rights which are not expressly authorised by the Agreement

9.3 Except as expressly permitted by these Terms and Conditions 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. GENERAL

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 the Agreement or these Terms and Conditions 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 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 the Agreement or these Terms and Conditions 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 these Terms and Conditions.

11.4 Governing Law

The Agreement shall be governed by and construed in accordance with the laws for the time being in force in the said State of Victoria and the parties hereby irrevocably submit to the jurisdiction of the Courts of the said State including any Courts having appellate jurisdiction there from.

11.5 Counterparts

The 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 the Agreement and the transactions contemplated by it.

11.7 Non Assignment

No party to the Agreement shall assign or purport to assign any of its rights under the Agreement without the prior written consent of the other party.

12. NOTICES

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:

The General Manager

REFRIGERANT RECLAIM AUSTRALIA LIMITED

GPO Box 753

Canberra ACT 2601

Facsimile 02 6230 4533

(b) if to Contributor.

RRA will use the name and address details of "the Contributor" specified in the Agreement.

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.

13. OPERATION OF AGREEMENT

The Agreement comes into force and effect as a Deed when executed by RRA on the basis that RRA shall not execute the Agreement until it has been executed by the Contributor.