Translation from German. Agreement. in accordance with Section 15 para 1 WEEE Ordinance [EAG-VO]

Transcription

1 Translation from German Agreement in accordance with Section 15 para 1 WEEE Ordinance [EAG-VO] on the release from obligations regarding waste electrical and electronic equipment (WEEE) from private households and from commercial purposes entered into by and between European Recycling Platform (ERP) Österreich GmbH Autokaderstraße Wien (hereinafter referred to as "ERP") on the one part and [ name ] [ address ] (hereinafter referred to as "System Participant"] in case of an authorization acc. 21a or 21b WEEE ordinance represented by (hereinafter referred to as Authorized Representative ) on the other part as follows: Page 1 of 10

2 1. Subject-matter of the Agreement 1.1. The Ordinance on Waste Prevention, Collection and Treatment of Waste Electrical and Electronic Equipment (WEEE Ordinance) obliges undertakings which put electrical and electronic equipment (EEE) onto the market to take back, re-use and/or treat and recycle and/or recover the WEEE existing. For EEE which were put onto the market before 13 August 2005, the undertakings concerned shall fulfil their obligations as defined in the WEEE Ordinance through participation in a collection and recovery system in accordance with Section 15 WEEE Ordinance. For EEE put onto the market after 12 August 2005, the undertakings concerned may release themselves from the obligations imposed by the WEEE Ordinance by participating in a collection and recovery system in accordance with Section 15 WEEE Ordinance ERP operates a collection and recovery system for WEEE from private households and commercial users authorized according to Section 29 Waste Management Act [Abfallwirtschaftsgesetz AWG] 2000 and the WEEE Ordinance. Operation of a collection and recovery system by ERP includes all WEEE of the following Collection and Treatment Categories as defined by the WEEE Ordinance: large appliances, cooling appliances, refrigerators and freezers, display screen equipment, including appliances with cathode-ray tubes, small electrical appliances as well as gas discharge lamps By this Agreement, the System Participant participates in the collection and recovery system operated by ERP regarding EEE put onto the Austrian market by him of the Collection and Treatment Categories defined by the WEEE Ordinance which are the subject-matter of this Agreement, in a way that all transferable obligations as defined by the WEEE Ordinance pass from the System Participant to ERP and will be fulfilled by ERP on behalf of the System Participant (Release from Obligations). 2. Definitions When used in this Agreement, the terms stated in the left column shall always have the meaning defined in the right column. Waste Management Act 2002 WEEE WEEE from private households Federal Statute on sustainable waste management [Bundesgesetz über eine nachhaltige Abfallwirtschaft], BGBl [Federal Law Gazette] I 2002/102 as amended from time to time. means Waste Electrical and Electronic Equipment as defined in 3 WEEE Ordinance. means WEEE which are defined in 3 item 8 WEEE Page 2 of 10

3 Ordinance as WEEE from private households. WEEE from commercial purposes means WEEE, which is not considered as WEEE from private households in accordance with 3 item 8 WEEE Ordinance means the Ordinance of the Federal Minister of Agriculture and Forestry, Environment and Water Management on Waste Prevention, Collection and Treatment of Waste Electrical and Electronic Equipment [Verordnung des Bundesministers für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft über die Abfallvermeidung, Sammlung und Behandlung von elektrischen und elektronischen Altgeräten ], BGBl. [Federal Law Gazette] II No. 121/2005 as amended from time to time. EEE means Electrical and Electronic Equipment as defined in 3 WEEE Ordinance item 7. EEE for private households EEE for commercial purposes means EEE which are defined in 3 WEEE Ordinance as EEE for private households. means EEE which is not considered as EEE from private households according 3item 7 Release from Obligations means transfer of obligations in accordance with 15 para 1 WEEE Ordinance to an authorized collection and treatment system. Co-ordination Body means the legal entity commissioned by the Federal Minister of Agriculture and Forestry, Environment and Water Management with the tasks defined in Section 13b para 1 Waste Management Act 2002 for the area of WEEE. Quarter means a quarter of a calendar year (Jan-Mar, Apr-Jun, Jul- Sep, Oct-Dec). Collection and Treatment Category means the categories defined in Annex 3 to the WEEE Ordinance, namely large appliances, cooling appliances, refrigerators and freezers, display screen equipment including appliances with cathode-ray tubes, small electrical appliances gas discharge lamps and photovoltaic modules. If reference is made in this Agreement to "Clauses", this shall mean the clauses of this Agreement and reference to a clause shall also include reference to a sub-clause of such clause. 3. Obligations of ERP 3.1. ERP shall fulfil for the System Participant the duties listed in 15 para 1 WEEE Ordinance in accordance with 5 para 4, 11 para 1 and 2, 13, 21 para 1 item 7, 23 para 1 and 24 para 1 WEEE Ordinance In case the System Participant is a producer in accordance with 13a para 1 item 4 or 5 AWG 2002 the following applies: Page 3 of 10

4 If ERP will be authorized by the System Participant in accordance with 21a or 21b WEEE ordinance, ERP will also take over the other obligations of 21 para 2 item 1 to 5 WEEE ordinance or 21 para 3 item 1 to 3 WEEE ordinance. The obligations in accordance with 4, 4a, 4b, 12 and 14 WEEE ordinance must be fulfilled anyway by the System Participant itself. If the System Participant authorizes another legal person in accordance with 21a or 21b WEEE ordinance, the authorized representative is regardless of clause 3.1. responsible by himself to fulfill the obligations in accordance with 21a para 2 or 21 b para 3 WEEE ordinance. The obligations of this Agreement with respect to ERP can be satisfied with discharging effect also by the Authorized Representative In accordance with 21 para 2 WEEE Ordinance ERP shall assume for the System Participant the administrative steps of registration of the System Participant as laid down in 21 para 1 WEEE Ordinance with the electronic register as defined in 22 para 1 Waste Management Act 2002 if so requested by the System Participant and to the extent it is permitted and possible. For this reason the System Participant has to fill in the required data according to 21 para 1 item 1 to 6 and 8 WEEE Ordinance in the provided form (Annex 3.2 master data sheet) when signing the contract Upon conclusion of the Agreement the System Participant shall advise the Collection and Treatment Categories for which he shall be released from its obligations by ERP. A limitation of the Collection and Treatment Categories shall be possible only in accordance with the provisions for termination defined in Clause 7. The Collection and Treatment Categories offered by ERP may be extended at any time with effect as of the subsequent Quarter upon written request of the System Participant. 4. Payment obligation of the System Participant 4.1. The consideration to be paid by the System Participant shall be calculated on the basis of the quantities of EEE put onto the market by him and on the basis of the price fixed by ERP from time to time for the relevant Collection and Treatment Category plus statutory VAT, while a minimum administrative fee will be set (Clause 4.2). This administrative fee will be invoiced after confirmation of the final annual report from the system participant acc. Clause The prices applicable at the time of conclusion of the Agreement are attached to this Agreement as Annex In case the System Participant is a producer in accordance with 13a para 1 item 4 or 5 AWG 2002 and authorizes ERP in accordance with 21a or 21b WEEE ordinance, ERP will charge in addition to the fee in accordance with Clause 4.1. an extra fee for carrying out the obligations as Authorized Representative. The additional fee for authorization valid at the time of conclusion of this Agreement is attached in Annex ERP shall credit the quantities of EEE which the System Participant has provably collected and reused or treated separately according to Collection and Treatment Categories in accordance with Section 11 WEEE Ordinance (Opting Out). Page 4 of 10

5 4.5. By taking into consideration the cost factors relevant to performance of this Agreement, ERP may adjust the prices and fees that are fixed from time to time to the relevant cost situation with effect as of the subsequent Quarter (Pricechanges). Relevant cost factors shall, for example, be changes of the return quantities, the prices of raw materials and energy prevailing in the market, the market prices for treatment and recycling of WEEE and the consideration payable by the systems to municipalities and the Co-ordination Body according to the WEEE Ordinance. When the prices are newly fixed, ERP shall be entitled, if necessary, to change the price structure. In case of price changes, the new prices shall be published by ERP not later than 4 weeks prior to entry into force. If a System Participant does not agree with a price change, he may terminate this Agreement as laid down in Clause The System Participant reports his Put on the market masses to ERP monthly until the 10th of the following month via an internet portal (ERP NET) according to Clause 5.2. ERP will invoice the system participant based on his reports with a payment target of 45 days. If the final annual report according to Clause 5.3. will result in a difference to the monthly sum according to Clause 5.2., the difference will be balanced with a credit or debit note If the calculated fee for the estimated masses for the coming calendar year will be less than the minimum fee stated in Clause 4.2., the system participant should inform ERP in advance by written notice. In this case, ERP will invoice at the beginning of the year a flat rate of EUR 200,00 plus statutory VAT. Thereupon the system participant needs to inform ERP about the actual put on market mass with the annual statement. Does the annual statement results in the case that the put on market mass of the system participant for all its collection and treatment categories is higher than the flat fee, ERP is invoicing the difference additionally. The payment of the difference is due after receipt of the invoice In case of an incorrect mass report, (see clause 5.2. and 5.3) ERP is entitled to invoice an administrative fee of EUR 3, to the system participant Setting-off of claims or withholding of payments by the System Participant shall be excluded unless they are counter-claims which have been recognized in writing or ascertained in a nonappealable manner. 5. Reporting obligation 5.1. The System Participant shall submit to ERP an annual forecast on the quantity of EEE which is planned to be put onto the market in that calendar year not later than upon conclusion of this Agreement and subsequently on each 1 st January. The annual forecast shall be submitted via an internet portal and according to the reporting and calculation rules published by ERP on the internet. The data of such annual forecast shall be the basis of operative and financial planning of ERP The System Participant shall be obliged to transmit to ERP regularly and separately for each Collection and Treatment Category reports on EEE put onto the Austrian market. Such regular reports shall be submitted via an internet portal and in accordance with the reporting and calculation rules published by ERP on the Internet. As a matter of principle, regular reports shall Page 5 of 10

6 always be made for a month unless the reporting and calculation rules set forth in Clause 5.4. provide otherwise. The regular reports shall be given by the 10 th of the following month unless the reporting and calculation rules set forth in Clause 5.4. provide otherwise. In case no EEE are put onto the market in the respective period, a nil report shall be submitted After the end of a calendar year ERP shall send their final annual report to the System Participant, which shall contain the quantities so far reported by the System Participant for the relevant calendar year. The System Participant shall check the final annual report submitted by ERP and inform ERP of whether and to what extent deviations from the quantities of EEE which were actually put onto the market by the System Participant during the calendar year exist. If the System Participants does not ascertain any deviations, he shall confirm the correctness of the reported quantities of EEE and submit such confirmation to ERP by 1 March of the calendar year following the reporting period. In case of differences between the actual quantities and the reported quantities of EEE the difference shall be settled in accordance with the statutory requirements to the extent possible The reports defined in Clauses 5.1 and 5.3 shall be given in accordance with the reporting and calculation rules applicable from time to time which are published by ERP on the internet. The reporting and calculation rules applicable at the time of conclusion of this Agreement are attached to this Agreement as Annex 5.4. Upon conclusion of this Agreement ERP shall provide the System Participant with the data necessary for accessing the internet portal. These reporting and calculation rules regulate, in particular, the principles of calculation of the quantity put onto the market, the methods of data collection, accuracy of reporting, reporting intervals and the reporting times. ERP shall be entitled to unilaterally adjust the reporting and calculation rules when necessary provided that such adjustment is necessary or expedient for updating, efficiency and functioning of the system or for adjustment to a changed legal situation or changed circumstances. The System Participant shall be informed by ERP about each such adjustment with a reasonable runup period. Adjustment of the reporting and calculation rules shall not entitle the System Participant to extraordinary termination of this Agreement. 6. Control 6.1. ERP shall be entitled to have the EEE which were put onto the market checked by an independent auditor of their choice in the business enterprise of the System Participant (in particular, correct allocation and notification of quantities and the underlying calculation factors). The System Participant shall be notified of the fact that an audit will be carried out, of the date of the audit and the period that will be audited by giving reasonable notice of at least three months. The System Participant shall disclose all relevant data and sources of data for purposes of the audit. With regard to the term of the contract ERP shall have the right to carry out such checks also during the year following termination of the Agreement. During such period, the System Participant shall keep all records suitable for proving correctness of the report on the quantities put onto the market. Page 6 of 10

7 6.2. If an audit by ERP finds a difference between the quantities reported as laid down in Clause 5.2. and the quantities actually put onto the market, ERP shall issue a credit note to the System Participant within 14 days or the System Participant shall make an immediate follow-up report of the differential quantity to ERP. The follow-up payment invoiced on the basis of a follow-up report shall be settled by the System Participant within 14 days If a correction as laid down in Clause 6.2 should be necessary because of wilful or grossly negligent incorrectness of information provided by the System Participant, the System Participant shall reimburse ERP the costs incurred in connection with the check. For settlement of expenses incurred by ERP as a result of a follow-up report as defined in Clause 6.2. in connection with a correction due to wilful or grossly negligent incorrectness of information provided by the System Participant, the parties agree on a contractual penalty of EUR 3, for each Quarter for which a follow-up report has to be made. If the System Participant claims slight negligence, he shall have to prove the same. The right of ERP to claim further damages shall not be affected. 7. Term of Agreement, termination, amendment to the Agreement 7.1. The Agreement shall enter into force on the date stated in the Agreement and shall be concluded for an indefinite period of time. In case, the System Participans is a producer in accordance with 13a para 1 item 4 or 5 AWG 2002 and has authorized ERP in accordance with 21a or 21b WEEE ordinance, the effectiveness of this Agreement is a condition precedent to the expiry of the last day of the calendar quarter, the registration of ERP as Authorized Representative in accordance with 21a or 21b WEEE ordinance in the register in accordance with. 22 para 1 AWG 2002 will follow by the Ministry. The quantity report as laid down in Clause 5.2. shall include all quantities which are put onto the market in the current Month as from the first day after which the Agreement was signed. However, ERP and the System Participant may also agree on a report with retroactive effect This Agreement may be terminated by the System Participant without stating reasons by giving three months' notice by registered letter with effect as of the end of each Quarter (ordinary termination by notice). The System Participant must then ensure a seamless continuation of the fulfillment of its statutory obligations itself If there is an important reason, either party may terminate this Agreement with immediate effect by registered letter (extraordinary termination without notice). The System Participant must then ensure a seamless continuation of the fulfillment of its statutory obligations itself. Important reasons shall include but not be limited to a. discontinuation of one's own business operation or of the other party's business operation; b. opening of insolvency proceedings over the other party's assets (confirmation by the trustee in insolvency) or dismissal of a petition for opening of insolvency proceedings for lack of assets; Page 7 of 10

8 c. non-appealable revocation or limitation of the system authorization of ERP; d. termination of the contract concluded between ERP and the Co-ordination Body; e. violation of material obligations of this Agreement by the other party (in particular, wilful or grossly negligent incorrectness of information provided by the System Participant under his reporting obligation; denial or gross and/or repeated delay in submission of regular reports and in payments by the System Participant; obstructing the check as described in Clause 6) if such non- compliance is not discontinued despite a written warning and granting of a reasonable grace period In the case of a price change as described in Clause 4.4., the Agreement may be terminated by the System Participant by giving two weeks' notice effective as of the end of every Quarter (extraordinary termination by notice) ERP shall be entitled to unilaterally adjust this Agreement when necessary provided that such adjustment is necessary or expedient for updating, efficiency and functioning of the system or for adjustment to a changed legal situation or changed circumstances. The System Participant shall be informed by ERP about each such adjustment with a reasonable run-up period prior to entry into force. In the event that the System Participant does not agree with such a unilateral adjustment, he shall be entitled to extraordinary termination without notice as defined in Clause 7.3. As to price changes Clause 7.4 shall apply. 8. Other provisions 8.1. The address of the System Participant stated in this Agreement shall be relevant to ERP. All notifications and letters from ERP to the System Participant may be effectively sent to such address as long as no new address of the System Participant has been notified in writing. The System Participant shall notify ERP of address changes in writing without delay. If invoices should be issued to an address other than the one stated in the Agreement, the System Participant shall advise so in writing Nullity, ineffectiveness or voidability, if any, of individual provisions of this Agreement shall not affect the validity or effectiveness of the remaining provisions. If individual provisions of this Agreement are or become null and void or ineffective, the parties shall replace such provisions by valid and effective provisions which come as close as possible to the commercial objective of the Agreement All modifications of or amendments to this Agreement shall be made in writing. This shall also apply to an abolition of this formal requirement of written form. Notice of termination as laid down in Clauses 7.2., 7.3. and 7.4. shall be given by registered letter. The parties have not made any oral side agreements The parties undertake to treat confidential information (in particular, master data, data of the system or of other participants in the system, reports and other business secrets and trade secrets) which they have obtained in the performance of or in connection with this Agreement as Page 8 of 10

9 confidential, protect the same against unauthorized access and not to use the same for purposes other than performance of this Agreement. The parties may disclose confidential information only if they are obliged to do so by law or official regulation or have been asked to do so by a court or public authority. In such a case they shall immediately inform the other party about such disclosure. The confidentiality obligation shall not apply to confidential information which is or becomes available to the public at the time of its transmission by one of the parties without violation of this Agreement. ERP shall ensure that disused data carriers containing data of the System Participant, if any, will be deleted and/or destroyed professionally Either party shall, in principle, be liable according to statutory provisions. However, ERP shall not be liable for cases of slight negligence of their bodies, officers or agents. Liability shall be limited to EUR 4,000, In the event no report as laid down in Clause 5.2. is submitted or an incorrect or incomplete report is submitted or a report is submitted late by the System Participant, any claims of the System Participant vis-à-vis ERP shall be excluded. In such a case, the System Participant shall be obliged to fully indemnify and hold ERP harmless from and against all claims of third parties (including but not limited claims by the Co-ordination Body and by public authorities), wherein especially is to replace any effort to fend off the claim This also applies to the case of the imposition of an administrative penalty against the administratively responsible organs of ERP due to violation of the ERP as Authorized Representative in accordance with 21a or 21b striking obligations or for other claims raised against ERP as Authorized Representative in accordance with 21a or 21b WEEE ordinance The parties agree that the court in Vienna having jurisdiction over the subject-matter shall be the exclusive legal venue for all disputes arising out of or in connection with this Agreement, including disputes over the validity of this Agreement. Procedural and substantial Austrian law shall be the applicable law The present Agreement shall be made in two copies. Each party shall be given one copy. Start of the Agreement according to Clause 7.1. as from Vienna, [System Participant] [ERP] [Authorized Representative] Page 9 of 10

10 Annexes: Annex 3.2: Master data form Annex 4.2: Tariffs according clause 4.1. Annex 4.3: Fee for authorization Annex 5.4: Reporting and calculation rules Page 10 of 10