| These Terms and Conditions constitute an Agreement between: The Customer (YOU) AND
Australian Carbon Pty Ltd (Australian Carbon)
ABN 48 124 682 471
18 Belmore St
Surry Hills
NSW, 2010 A The Customer wishes to purchase Greenhouse Gas Offsets which have either already been achieved, or guaranteed to be achieved over a 50 year period through forestry. The purchase option is at the discretion of the Customer. B Australian Carbon provides services to remove Greenhouse Gases from the atmosphere, and to facilitate the purchase of credits from other projects. C You wish to offset greenhouse gas emissions by engaging Australian Carbon to establish plantings or source accredited offsets to remove Greenhouse Gases from the atmosphere. D This Agreement terminates 50 years from the time of payment to Australian Carbon. E You accept the services subject to this Agreement by providing Australian Carbon with the Payment. Information
You warrant that all the information provided in the order form is accurate, complete and up to date. Australian Carbon will not be held liable for wrong delivery as a result of misinformation provided by the Customer. If there is a change in the information you provided to us you must notify Australian Carbon immediately. Your acceptance of this Agreement in electronic form is deemed to rank equal to a written document with an original signature. Any information provided by You to Australian Carbon will be kept confidential and used solely for the purpose of performing the tasks outlined in this Agreement. In particular transferring legal title of a Carbon Credits to You, for audit purposes and any other purpose arising to maintain compliance with a Scheme Administrator.
Your information will be treated confidential and not sold to any non-affiliated third parties. More detail on the use of your information can be found in the Australian Carbon Privacy Policy.
On acceptance of this Agreement each Party warrants they are duly authorised to execute this Agreement and fulfil their respective obligations as detailed in this Agreement. This Agreement constitutes a legal, valid and binding obligation for each Party to fulfil its obligations as detailed in this Agreement. In the event the obligations under this Agreement are not fulfilled, legal remedy may be taken. If any part of this Agreement becomes illegal, irrelevant or unenforceable, the Agreement shall remain otherwise in full force excluding any such provisions. The Agreement, defined by these Terms and Conditions, between the Customer and Australian Carbon, prevails over any other information previously related to the customer, both verbal and written, or implied through promotional or marketing materials including the website.
Each submission of an order through the website is considered a separate Agreement. This Agreement may be executed in any number of counterparts and all counterparts taken together shall be deemed to constitute one and the same instrument. The Customer consents to Australian Carbon, when required, to act as agent for the Customer for the purpose of registering your details with the Scheme Administrator, transferring Carbon Credits between Australian Carbon and You, and any other activity required to fulfil our obligations as detailed in this Agreement. The Customer consents to Australian Carbon taking all necessary actions required to comply with the Scheme Administrator, on behalf of the Customer. The Customer acknowledges that nothing in this Agreement constitutes a relationship of employee or employer or joint venture or partnership between the Customer and Australian Carbon.
Either Party may assign its rights or obligations under this Agreement without consent. The Customer must not make representations, or conduct itself in a manner, concerning this Agreement that is misleading or deceptive, incorrect or that otherwise misrepresents the services provided under this Agreement or the contents of those documents. No Party is liable for any failure to perform or delay in performing its obligations in accordance with this Agreement, if such a failure or delay is the result of anything beyond that Party’s reasonable control. This does not apply to any obligation to pay money. In the event Force Majeure occurs the requirement for Australian Carbon to deliver the obligations as detailed in this Agreement will be postponed for so long as is made necessary by the event of Force Majeure. In the event Force Majeure occurs, Australian Carbon may terminate this Agreement at its discretion by means of notification to the Customer and a refund of funds not yet expended on Carbon Credits or the Carbon Project. Neither Party have any other rights or liabilities against the other as a result of such a termination, except for the rights and liabilities that were in effect, and may have been breached prior to termination. The Customer agrees to pay Australian Carbon the disclosed price for the provision of products or services detailed in these Terms and Agreement. Australian Carbon reserves the right to change the price of any product or service at its sole discretion. Each Party to this Agreement will bear its own costs in assessing whether or not to execute this Agreement. The Customer is responsible for the payment of any and all tax imposed in your jurisdiction in connection with any products or services you purchase from Australian Carbon. When Goods and Services Tax (GST) is payable on any product or service provided by Australian Carbon, payment by the Customer of the GST component must be made to Australian Carbon at the same time payment is made for the taxable supply of the product or service. Australian Carbon uses an eWay secure payment gateway to encrypt and transfer your payment to Australian Carbons internet merchant facility. eWay provides a 1024 bit bank encryption to ensure secure transactions.
eWay uses CVN checking. As a policy the Australian Carbon website will not: Contain anything that constitutes or encourages a violation of any applicable law or regulations, including but not limited to the sale of illegal goods or the violation of export controls, obscenity laws or gambling laws. Contain any adult or pornographic content. Offer for sale goods or services, or use to display materials, that may be considered by a reasonable person to be obscene, vulgar, offensive, dangerous, or are otherwise inappropriate.
Use unaccredited payment pages.
All information provided will be accurate to the best of Australian Carbons knowledge.
The Customer releases Australian Carbon from any claims in connection with the services it provides under this Agreement, except to the extent that those claims arise as a result of a breach or negligence on the behalf of Australian Carbon. Australian Carbon excludes all liability for loss or damage arising out of, or in connection with, the use of the website, including, but not limited to, direct, indirect, economic or consequential loss or damage. This exclusion of liability expressly includes liability for loss or damage caused by third Party interference with the website. Australian Carbon excludes all liability to You in regards to the value of each Certificate after it is purchased by you and makes no representations in regards to the value of each Certificate purchased by You or its liquidity. You warrant that you have not relied on any representation made by us not stated expressly in this Agreement. You acknowledge that to the extent we have made any representation that is not otherwise expressly stated in this Agreement, you have been provided with an opportunity to independently verify the accuracy of that representation. This includes without limitation the fact that it is your responsibility for you to make your own independent enquiries as to the value of each purchase made. Australian Carbon will use best endeavours to deliver the products and services to you within 14 days of receiving payment. These products and services may include Carbon Credits, certificates, stickers, luggage tags, gifts cards, and any other promotional material made available through an Australian Carbon offer. In the case of forestry credits, the credits will be generated and retired on your behalf, annually for a period of 50 years. For orders outside of Australia, best endeavours will be made to deliver the products and services to you within 28 days. No additional charge for international orders are payable by the Customer. The goods remain at the Customers risk from the time the goods leave our premises for delivery to the Customer. Australian Carbon will not refund amounts paid for products and services. Any refunds made will be at the discretion of Australian Carbon.
Australian Carbon warrants it will undertake the following actions over a 50 year period to guarantee the offset of the said quantity of tonnes of CO2e, as purchased by the Customer.
The plantings will be undertaken in line with principles and procedures required under the Federal Governments Greenhouse Friendly™ program. Any funds received up to and including June 30 in any financial year will be pooled, and plantings will occur during the following winter.
Best endeavours will be made to undertake the plantings earlier where there is surplus land and seedlings. Plantings will occur during the following winter due to seedling germination of approximately 9 months. If weather conditions are likely to result in low survival rates, the plantings may be delayed at Australian Carbon’s discretion. In the event Australian Carbon delays planting, the Terms and Conditions as stated in this Agreement will extend beyond the initial Agreement term of 50 years, by a time equal to that of the delay. On receipt of funds, Australian Carbon will estimate the area of plantings required to offset the required amount of carbon within 50 years. Australian Carbon undertakes to plant on land that was clear of a forest at 31 December 1989. The land will be Kyoto Consistent Land.
Ascertain an appropriate stocking density, species, planting configuration and planting schedule for the land.
Undertake soil testing. Develop plantation maps with the intended planting area recorded via GPS. Apply for any approvals required to undertake the plantings (land covenants, planning approvals, and plantation approvals). The Customer acknowledges that approvals may depend on a third Party. In such a case a delay ensues, Australian Carbon will undertake the plantings on the land at the next practically available time, or commence planning to plant on a different site. Australian Carbon reserves the right to terminate this Agreement based on approval difficulties, and will refund the Customers money in such cases. Register binding land covenants on title of the land to ensure the trees can not be removed. Develop a detailed risk management plan.
Define project boundaries. Australian Carbon will rip and cultivate the land to ensure the young seedlings have a greater chance of survival. Planting will be undertaken by direct human induced methods, either hand planting or machine planting. Weed and pest control will be undertaken as required.
Fire breaks and other risk mitigation actions will be taken as required.
Any other operations Australian Carbon deems necessary.
Post Planting Australian Carbon will monitor and maintain the sink for a period of at least 50 years.
Weed and pest control will be undertaken as required.
Australian Carbon will replant the site as required to maintain tree stocking of at least 80% of the original stocking level.
Every year for at least 50 years from planting, Australian Carbon will keep records of the quantity of offsets achieved for the Customer under this Agreement to ensure compliance with the scheme administrator. Any shortfall in yield will be purchased by Australian Carbon from alternate projects.
Annual scheme compliance will be satisfied. Sampling and statistical measurement program will be developed and executed.
Verification of abatement will be undertaken by an independent third Party.
Verification of abatement claims will be undertaken annually.
Data management systems will be in accordance with Scheme Administration requirements.
Direct and Indirect emissions resulting from undertaking the project will be measured and offset.
Risk management and mitigation will be undertaken on an ongoing basis.
Insurance to cover depletion events will be undertaken to cover any carbon losses. Pooling
The Customer agrees that the plantings undertaken by Australian Carbon to offset the required quantity of CO2e may be undertaken as part of a larger pool of forestry plantings. Australian Carbon agrees that, if this is the case, the Customer's plantings will be in addition to those plantings that are used for any other purpose. There will be no double counting. Pooling does not impact the guarantee Australian Carbon provides in delivering the offsets. No Double Counting of Emissions In respect of the quantity of offsets that are achieved for the Customer as a result of plantings undertaken by Australian Carbon, Australian Carbon undertakes that: (a) it has not attributed the carbon offsets to any other person;
(b) it has not sold, Encumbered or otherwise dealt with the underlying reductions in CO2e or any Carbon Rights that are or could be associated with them;
(c) it has not sought to generate separate Carbon Rights from the abatement achieved; and
(d) it has not used the carbon offsets for any purpose other than this Agreement.
For the remaining Term of this Agreement, Australian Carbon undertakes that:
(e) it will not attributed the carbon offsets to any other person;
(f) it will not sell, Encumber or otherwise deal with the underlying reductions in CO2e or any Carbon Rights that are or could be associated with them;
(g) it will not seek to generate separate Carbon Rights from the abatement achieved; and
(h) it will not use the carbon offsets for any purpose other than this Agreement. Customers Ownership of the Carbon Rights For forestry carbon credits; except for the right to hold out and take responsibility for engaging Australian Carbon to undertake the emission reductions on behalf of the Customer, the Customer does not acquire any ownership of the Carbon Rights. In particular, the Customer does not acquire goods or any title or interest in the Carbon Credits, the land, the trees, or in any Carbon Rights deriving from them.
The Customer agrees not to seek to have the Carbon Credits recognised as a Carbon Right or to purport to sell or Encumber such Carbon Credits or Carbon Rights, without the written consent of Australian Carbon. Changes to sites
Australian Carbon may change or modify the Sites, including moving a site on the same lot or parcel or changing a site to another parcel of land or lot altogether.
Australian Carbon reserves the right to carry out other development or activities on the land of which the Site is a part, including without limitation subdivision, enabling third parties to occupy the Sites, or enabling agricultural operations and activities. Replacement or Substitution of Carbon
In guaranteeing that the required quantity of offsets will be delivered for the Customer, Australian Carbon may supplement, exchange or substitute its own forestry Carbon Credits with CERs, NGACs, other Greenhouse Friendly™ abatement certificates, or other verified Carbon Offsets to meet the obligations agreed to within this Agreement.
Australian Carbon will keep records of any replacement or substitute carbon purchased from a third Party to maintain full auditability. 3. Notices
Notices
All notices, requests, requirements, demands, consents or other communications must be in writing and will be valid and sufficient if:
(a) sent by pre-paid ordinary post to the address specified below; or
(b) sent by facsimile to the facsimile number specified below. To AUSTRALIAN CARBON:
Australian Carbon Pty Ltd
Attention: Voluntary Offsets
Facsimile: 03 9681 9930
Postal Address: 1/192 Graham St, Port Melbourne, Victoria,3207 To the Customer:
The email address, facsimile or postal address provided by the Customer at the time of entering into this Agreement on the website or shown in the letter to which this agreement is attached. All notices, requests, requirements, demands, consents or other communications shall be deemed to have been served - in the case of a postal letter, on the tenth business day after posting; and in the case of a facsimile, 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, on the day of transmission if transmitted before 11.00 GMT on a Business Day or otherwise on the first Business Day after transmission.
Either Party may specify in writing to the other a new officer, address or facsimile number as required. Entire Agreement
This Agreement records the entire agreement between the Parties in respect of its subject matter. Amendment
This Agreement may only be varied or replaced by a written agreement duly executed by the parties. Waiver and exercise of rights
A Party can only waive a right in their favour under this Agreement, or any breach by the other Party of an obligation under this Agreement, by a written instrument duly executed by them. No other act, omission or delay of the Party will constitute a waiver.
A single or partial exercise or waiver of a right relating to this Agreement will not prevent any other exercise of that right or the exercise of any other right. Governing law
This Agreement is governed by, and will be construed in accordance with, the laws of Victoria. Jurisdiction
Each Party irrevocably and unconditionally:
(a) submits to the non-exclusive jurisdiction of the courts of Victoria; and
(b) waives, without limitation, any claim or objection based on absence of jurisdiction or inconvenient forum. 4. Definitions and Interpretation Definitions
In this Agreement: Agreement means these terms and conditions.
Australian Carbon is defined as the company registered with the Australian Securities Investment Commission as Australian Carbon Pty Ltd ABN 48 124 682 471. Carbon Rights means any current or future right, credit, interest, certificate, offset, allowance, entitlement or benefit, whether recognized by any law, regulation, contract, regime, publication, policy, program or fund (now or in the future, and as created, amended, supplemented or replaced from time to time), that arises or may arise from removing carbon from the atmosphere and includes for avoidance of doubt any underlying actual physical reduction in emissions. Customer means the person entering into this Agreement with Australian Carbon, having the name, (possibly ABN) and address notified to Australian Carbon using the website, or that is specified in the letter to which these terms and conditions are attached.
CO2e means carbon dioxide (CO2), nitrous oxide (N2O), methane (CH4), sulphur hexafluoride (SF6), perflurocarbons (PFCs) and hydroflurocarbons (HFCs) measured in tonnes of carbon dioxide equivalent or any one or more of them and any other substance from time to time listed under Annex A to the Kyoto Protocol or any instrument or agreement that amends, succeeds or replaces it. Encumber means the act of imposing an Encumbrance.Encumbrance includes any mortgage, charge, pledge, lien, encumbrance, assignment, security interest, title retention, preferential right, trust arrangement, contractual right of set-off or any other security agreement or arrangement in favour of any person by way of security for the payment of a debt or any other monetary obligation.
Force Majeure means any event or circumstance that is beyond the reasonable control of Australian Carbon which could not have been avoided or mitigated by Australian Carbon acting (and having acted) in relation to the services under this Agreement as a reasonable and prudent operator, that prevents Australian Carbon from performing its obligations under this Agreement. Greenhouse Gas means carbon dioxide (CO2), nitrous oxide (N2O), methane (CH4), sulphur hexafluoride (SF6), perflurocarbons (PFCs) and hydroflurocarbons (HFCs) measured in tonnes of carbon dioxide equivalent or any one or more of them and any other substance from time to time listed under Annex A to the Kyoto Protocol or any instrument or agreement that amends, succeeds or replaces it.
Greenhouse Gas Reduction means the cumulative net physical removal of Greenhouse Gases achieved by the Planting Works under this Agreement measured in accordance with the Standard in units of metric tonnes of carbon dioxide equivalent. Kyoto Consistent Land means land in Australia for which net changes in greenhouse gas emissions from forestry activities involving afforestation or reforestation may be used to meet commitments under the Kyoto Protocol in accordance with Article 3.3 (notwithstanding that Australia has not ratified that instrument and so has no such commitment). Kyoto Protocol means the Kyoto Protocol to the United Nations Framework Convention on Climate Change, adopted 11 December 1997. Party means Australian Carbon or the Customer and Parties means both of them. Payment is the total amount in Australian dollars that Australian Carbon offered on the website to charge the Customer in return for entering into this Agreement, at the time the Customer entered into this Agreement, or that is specified in the letter to which these terms and conditions are attached. Scheme Administrator means the independent body employed to ensure compliance with the scheme. In the case of the Federal Governments Greenhouse Friendly™ program, the scheme administrator is SMEC. In the case of the NSW Greenhouse Gas Abatement Scheme the Scheme Administrator is IPART.
Standard means Australian Standard AS 4978.1-2006 : Quantification, monitoring and reporting of greenhouse gases in forest projects - Afforestation and reforestation. Term means the duration of the Agreement; being 50 years from the date Australian Carbon receives payment.
5. Interpretation
In this Agreement, unless the context requires another meaning:
a reference:
(i) to the singular includes the plural and vice versa;
(ii) to a gender includes all genders;
(iii) to a document (including this Agreement) is a reference to that document (including any Schedules) as amended, consolidated, supplemented, novated or replaced);
(iv) to a Party means a Party to this Agreement;
(v) to an Schedule or clause is to a Schedule or clause of or to this Agreement;
(vi) to a notice means a notice, approval, demand, request, nomination or other communication given by one Party to another under or in connection with this Agreement;
(vii) to a person (including a Party) includes:
(A) an individual, company, other body corporate, association, partnership, firm, joint venture, trust or government agency; and
(B) the person's successors, permitted assigns, substitutes, executors and administrators;
(viii) to a law:
(A) includes a reference to any legislation, treaty, judgment, rule of common law or equity or rule of any applicable stock exchange;
(B) is a reference to that law as amended, consolidated, supplemented or replaced; and
(C) includes a reference to any regulation, rule, statutory instrument, by-law or other subordinate legislation made under that law;
(ix) to the word "including" or "includes" means including, but not limited to, or includes, without limitation; and
(x) to an amount or sum of money or to a payment is a reference to that amount in Australian dollars only;
where a word or phrase is defined, its other grammatical forms have a corresponding meaning; and headings are for convenience only and do not affect interpretation.
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