1 INTERPRETATION

“Business Day” means any day, other than a Saturday, Sunday or public holiday in Auckland, on which banks are generally open for business in Auckland.

“PPSA” means the Personal Property Securities Act 1999 as amended from time to time.

“Security Interest” includes any security interest under the PPSA.

“Trust” means The Trust for the Destruction of Synthetic Refrigerants.

2 SERVICES

(a) If requested by a customer approved by the Trust in its discretion, the Trust will provide the following services (“Services”):

(i) supply of an appropriate cylinder to the customer for the sole purpose of refrigerant recovery for destruction through the Trust;

(ii) designation of a Cool-Safe Collection Site or other return facility for the customer to return the cylinder; and

(iii) written verification of the net decanted weight of the refrigerants retrieved from a cylinder.

3 CUSTOMER TERMS

(a) The customer agrees:

(i) to pay the fees set out in clause 4(b) and 4(c) (if applicable);

(ii) all cylinders remain the absolute unencumbered property of the Trust;

(iii) it is responsible for the safe custody and return of a cylinder at its cost to a Cool-Safe Collection Site or as instructed in writing by the Trust;

(iv) not to use any damaged cylinder and to notify the Trust of any cylinder received damaged within 72 hours of receipt and to return any damaged cylinders unused to a Cool-Safe Collection Site or as instructed in writing by the Trust;

(v) it is liable for any loss or damage to a cylinder that occurs after the date of it is received by the customer and before it is returned to the Trust;

(vi) cylinders are made available to the customer for the sole purpose of filling with recovered refrigerant for delivery to the Trust for destruction by the Trust and must not be used for any other purpose in particular (without limitation) cylinders are not to be used for the purpose of recovered refrigerant storage or for the purpose of holding refrigerant for recycling;

(vii) to use a removable label for the purposes of identifying contents of a cylinder and not to write upon, alter, or deface a cylinder in any way;

(viii) fillers must have a current Approved Fillers Certificate. Fillers must fill to the correct fill ratio, with gas appropriate to the cylinder manufacturer’s specifications;

(ix) to certify the cylinder contents to the Trust and to ensure that cylinders contain only low, medium or high-pressure refrigerants classified as non-flammable gas;

(x) ownership of and full title to the refrigerants in a cylinder (and any rights arising from ownership of those refrigerants including the right to claim NZUs) passes to the Trust at the point the cylinder is delivered to a Cool-Safe Collection Site or as instructed in writing by the Trust;

(xi) the Trust is the only party entitled to claim an export credit of NZU under the New Zealand Emission Trading Scheme in respect of the export or destruction of the refrigerants retrieved from a cylinder;

(xii) the Trust is not liable for any injury or harm to persons or property caused by a cylinder or the customer’s use, storage or transportation of a cylinder;

(xiii) to fully indemnify and hold harmless the Trust against all claims, proceedings, costs, damages, losses, and expenses whatsoever arising directly or indirectly out of the possession or use, storage or transportation of a cylinder by the customer or any other person; and

(xiv) the written verification of the net decanted weight is final and the customer will issue an invoice for the fee payable by the Trust pursuant to clause 4(d).

4 FEES

(a) There is no charge for the use of the cylinder for the first 6 months from the date of it is received by the customer (“Rent Free Period”).

(b) If the cylinder is not returned to the Trust during the Rent Free Period then the Trust may either:

(i) charge the customer a loss fee of $499 +GST; or

(ii) retrieve the cylinder and charge the cost of retrieval to the customer.

(c) If the cylinder is lost, damaged, altered or defaced in any way then the Trust may charge the customer the lesser of the costs to repair or reinstate or a loss fee of $499 +GST.

(d) The Trust will pay to the customer $25 per kg of the net decanted weight of the refrigerants retrieved from a cylinder as determined and verified by the Trust.

5 TERMS OF PAYMENT

(a) All amounts payable by the customer are due and payable without set-off or deduction within 7 days of invoice by way of direct credit to the Trust’s nominated bank account from time to time.

(b) All amounts payable by the Trust are due and payable within 7 days of invoice by way of direct credit to the customer’s nominated bank account from time to time. The customer agrees that the Trust may set off amounts owed by the customer to the Trust against any invoice raises by the customer.

(c) In the event that payment is not received according with these Terms and Conditions this will constitute a default and:

(i) all money owed by will become immediately due and payable;

(ii) default interest will accrue on the daily balances of overdue accounts from the day following the due date at the Official Cash Rate on the due date plus 10%; and

(iii) the party in default will pay on demand any costs incurred by the other party in recovering the amounts owed (including legal costs on a full indemnity basis).

(d) A customer may not by reason of any set off, counterclaim, abatement, claim or analogous deduction withhold payment of any amount due and owing to the Trust.

6 RETENTION OF TITLE, DELIVERY, RISK AND PROPERTY

(a) Ownership in the cylinders remains with the Trust.

(b) The customer shall be bailee for the Trust and must designate and keep the cylinders in such a way as to indicate that the cylinders are the property of the Trust and upon request must advise Trust of the location of the cylinders.

(c) The customer must keep the cylinders insured against loss and damage and free from all encumbrances and charges.

(d) The customer irrevocably authorises the Trust (or its representatives) to:

(i) enter any of a customer’s properties and inspect the cylinders; and

(ii) enter any of a customer’s properties, without notice, and without being in any way liable to a customer or to any third party and repossess the cylinders.

(e) The customer indemnifies the Trust against any claim, demand or action arising out of or in connection with the Trust exercising its right under clause 6(d) (including any claims made by any third party as a result of that exercise).

7 DEFAULT AND TERMINATION

(a) In the event of:

(i) an insolvency event;

(ii) a customer failing to make any payment on the due date; or

(iii) a customer not complying with an obligation under these Terms and Conditions,

the Trust may, without prejudice to any other remedy:

(i) suspend or cease to perform any of its obligations to a customer; or

(ii) immediately terminate the contract with a customer without incurring any liability at law or in equity and without prejudice to the Trust’s right to recover amounts owing to it by a customer; and/or

(b) Either party may terminate this agreement by giving not less than 20 Business Days’ notice in writing to the other party.

(c) On termination, all cylinders must be immediately returned. Termination does not affect the accrued rights and obligations of the parties, including with respect to any payments due or any indemnities given by a customer.

8 MISCELLANEOUS

(a) These Conditions shall be governed and construed in accordance with the laws of New Zealand.

(b) A customer shall not assign any rights or obligations under the Contract without the prior written consent of the Trust.

(c) If anything in the Contract is unenforceable, illegal or void then it is severed and the rest of the Contract remains in force, unless the severance would change the underlying principal commercial purpose or effect of the Contract.

(d) The Trust may vary any provision of these Terms and Conditions, at any time, by giving a customer not less than 30 Business Days’ notice in writing of the variations.

9 PPSA

(a) This Contract constitutes a security agreement for the purposes of the PPSA.

(b) Definitions: unless the context requires otherwise, the terms used in this Contract have the meanings given to them in, or by virtue of, the PPSA.

(c) Consideration: in consideration of the Trust agreeing to supply cylinders to a customer, the customer:

(i) grants to the Trust, at the Trust’s discretion, a Security Interest and/or a purchase money security interest in the cylinders;

(ii) agrees that the Security Interest has attached or will attach to all cylinders supplied now or in the future to a customer when a customer takes possession of the cylinders and that the attachment of the Security Interest has not in any way been deferred or postponed; and

(iii) agrees to treat the Trust’s Security Interest in the cylinders as a continuing and subsisting security with priority over a registered general security and any unsecured creditors.

(d) Customer must take all steps: the Trust may, by notice to a customer at any time, require a customer to take all steps that a customer considers necessary or desirable to:

(i) ensure that the Contract or any Security Interest or PMSI arising under it, is enforceable against a customer or any third party; and

(ii) protect, perfect, record, or better secure the Trust’s position under the Contract as a first ranking security.

(e) Registration: a customer acknowledges that the Trust reserves the right to register a financing statement in respect of any Goods supplied by the Trust to a customer under the Contract and that the Trust can require a customer to pay the cost and expense of registering a financing statement or a financing change statement.

(f) Notices: a customer waives the right to receive a copy of any notice, verification statement confirming registration of a financing statement or a financing change statement relating to the Security Interest under the Contract, unless the notice or statement is required by law and cannot be excluded.

(g) Protection of Goods: a customer agrees:

(i) not to allow any person to register a financing statement over any of the cylinders supplied by the Trust without the Trust’s prior written consent;

(ii) that a customer must immediately notify the Trust if a customer becomes aware of any person taking steps to register a financing statement in relation to the Goods; and

(iii) to perfect and maintain any Security Interest that a customer may have in the cylinders under the PPSA.

(h) Contracting out of enforcement provisions:

(i) The parties agree that sections 114(i)(a), 133 and 134 of the PPSA are excluded. A customer waives its rights under sections 121, 125, 129, 131 and 132 of the PPSA.