Based on the template published by the Australian Financial Markets Association Ltd (March 2021 edition)
1 Definitions
Defined terms shall have the meaning set out below. Reference to legislation or rules includes reference to that legislation or rules as amended or replaced from time to time, and any applicable regulations made thereunder.
“ABCF” means Aboriginal Carbon Fund Limited T/as
Aboriginal Carbon Foundation
75 Hartley Street, Alice Springs NT 0870
ABN 13 146 413 809, appointed as an authorised representative of the Seller to deal in derivatives (including ACCUs).
“ACCU” means an Australian carbon credit unit within the meaning of the CFI Act, issued under Division 2 of Part 11 of the CFI Act and transferable under Division 3 of Part 11 of the CFI Act.
“Business Day” means a day on which commercial banks and foreign exchange markets settle payments and are open for general business in the cities in which the Australian offices of the Seller and Buyer as noted in the Contract Details are located.
“Buyer” means the party name as customer of the ACCUs in the Application form.
“Application form” means the online application form accessed through the Seller’s
“CFI Act” means the Carbon Credits (Carbon Farming Initiative) Act 2011 (Cth).
“Seller” means ABCF on behalf of Shepherd-Gray Pty Ltd, holder of an Australian financial services licence (No. 298851) and authorised to deal in derivatives which includes ACCUs (ABCF Authorised Representative No. 001299704).
“Quantity” means the quantity of ACCU selected in the Application form
“RBA Cash Rate” means on any day, the rate most recently published by the Reserve Bank of Australia as its “Cash Rate Target”.
“Settlement Disruption Event” means an event beyond the control of the parties as a result of which the Sold Commodity cannot be transferred, or transfer of the Sold Commodity cannot be registered in accordance with the Scheme Rules, or otherwise in accordance with the relevant legislation or scheme rules.
“Scheme Rules” means the CFI Act.
“Sold Commodity” means the Quantity of the ACCU.
“Transfer Date” means the date on or about the date the Application was submitted to ABCF and if this date is not a Business Day the next Business Day after that date.
“Unit Price” means the per unit of the ACCU, exclusive of GST.
2 Sale and Purchase
The Seller sells the Quantity of ACCU to the Buyer. The Seller shall take all actions required by the Scheme Rules to transfer the Sold Commodity to the Buyer by 2.00pm Australian Eastern Daylight Time on the Transfer Date, for which time is of the essence. If the Seller is unable to transfer the Sold Commodity on the Transfer Date because of a Settlement Disruption Event, the Transfer Date will be the next Business Day on which the Settlement Disruption Event is no longer subsisting, and the Payment Date will be extended by a corresponding number of days. Prior to the Transfer Date, the Seller must issue to the Buyer a tax invoice setting out the Sold Commodity to be transferred from the Seller to the Buyer on the Transfer Date, the Unit Price and the total amount payable.
3 Transfer Fees
The Buyer shall pay any transfer fees imposed by the Scheme Rules or applicable registrar in respect of the transfer of the Sold Commodity, including stamp duty, and if the Seller is required by the Scheme Rules to pay any transfer fee or other similar expense associated with the transfer of the Sold Commodity, the Buyer shall reimburse such expense on demand.
4 Payment
The Buyer shall pay the Unit Price multiplied by the Sold Commodity by the manner nominated in the online application form.
5 Title
Title to the Sold Commodity transferred in accordance with this Contract will transfer to the Buyer on the Transfer Date (as extended under clause 2, if relevant) or the date determined in accordance with the requirements of the Scheme Rules.
6 Nature or Buyer
You warrant that you are a wholesale client for the purposes of the Corporations Act 2001. If you are a sophisticated adviser under section 761GA of the Corporations Act 2001 you further declare that:
(a) you have previous experience in using financial services and investing in financial products;
(b) you are experienced in assessing the value and the risks associated with using financial products and services;
(c) where you lack experience you have access to professional legal and financial advice;
(d) you understand that in dealing in derivatives with the Seller you will not be provided with a Product Disclosure Statement;
(e) you acknowledge that the Seller has no obligation to you in regard to how a product or service is provided to a retail client under the Corporations Act 2001;
(f) you are aware of an understand your own circumstances and needs;
(g) the information provided by the Seller is adequate to enable you to assess whether to buy the ACCUs from the Seller.
7 Anti-Money Laundering
The Buyer agrees that the Seller may delay, block or refuse to process any transaction without incurring any liability if it suspects that:
(a) the transaction may breach any law in Australia or any other country;
(b) the transaction involves any person (natural, corporate or governmental) that is itself sanctioned or is connected, directly or indirectly, to any person that is sanctioned under economic and trade sanctions imposed by the United Nations, the European Union or any country; or
(c) the transaction may directly or indirectly involve the proceeds of, or be applied for the purposes of, unlawful conduct.
The Buyer must provide all information to the Seller which it reasonably requires in order to manage its money-laundering or terrorism-financing risk or to comply with any laws in Australia or any other country.
The Buyer agrees that the Seller may disclose any information concerning you to any law enforcement, regulatory agency or court where required by any such law, in Australia or elsewhere or to a third party verification service to verify your identity.
The Buyer warrants that it is acting on its own behalf in entering into this agreement and that payment or receipt of monies by the Buyer under this Contract will not breach any laws in Australia or any other country.
8 Warranties
The Seller warrants that, at the time of transfer to the Buyer, the Sold Commodity transferred to the Buyer under this Contract:
(a) has been created in accordance with the requirements of the Scheme Rules;
(b) is owned by the Seller with full legal and beneficial title; and
(c) is free and clear of any security interest, claim, lien or encumbrance of any kind.
At the time of transfer of the Sold Commodity the Buyer and Seller each warrant to the other that they will comply with the Scheme Rules as regards the Sold Commodity transferred to the Buyer under this Contract.
9 GST and Tax
The parties agree that matters relating to goods and services tax (GST) and witholding tax is addressed in the broader agreement between the parties that governs the engagement between the parties and this purchase.
10 Governing law and jurisdiction
This contract is governed by the law of the Northern Territory. Each party submits to the non-exclusive jurisdiction of the courts in the jurisdiction and courts of appeal from those courts.
