Membership Terms and Conditions

Agreement between Smart Comply and Member

 

1. DEFINITIONS

In this Agreement, unless the context otherwise requires, the following words shall have the following meanings unless otherwise stated,

“Agency” – means the Environment Agency in England, The Scottish Environmental Protection Agency in Scotland, Natural Resources in Wales and The Northern Ireland Environment Agency in Northern Ireland or any successor body from time to time;

“Agreement” – means the agreement between us and you (and any Group Members) including, without limitation, the appendices to this Agreement.

“Application” – means the provision by the member of an application form, signed Agreement, the provision of packaging handled data and payment of the annual fee;

“Approved Person” – means a Director of the business as listed on Companies House; for a partnership, a partner. For sole traders, the individual;

“Compliance Charges” – means the apportioned contribution of the Member to the costs incurred by the Scheme to satisfying the Obligations of the Scheme;

“Consumer Information Obligations” – means the obligations placed upon Producers of the category Seller by the Regulations to provide information to consumers on recycling and recovery of Packaging Waste;

“Delegated Approved Appropriate Person” means a person nominated by an Approved Person to sign documents pertaining to The Regulations on their behalf. Authority is granted by an Approved Person using the Agency form titled ‘Delegation of approved/appropriate person form’ which can be supplied by the Scheme upon request;

“Fees” – means any fee or other charge or levy payable under this Agreement;

“Force Majeure Event” means any event beyond the reasonable control of the Scheme and shall include but shall not be limited to acts of God or war or terrorism, fire, floods, earthquakes, storms, defaults by suppliers, insufficient recycling evidence generated, strikes, lock out, industrial disturbances, riots, civil commotion or unrest, interference by civil or military authorities and compliance with the acts, regulations or orders of any local, governmental or other regulatory insofar as these have been implemented or modified since the date of the Agreement;

“Group Company” – means any company which forms part of a Group Membership as indicated on the Application form;

“Group Member”- means a company in your group which is part of a Group Membership;

“Group Membership” – means Membership by a Member both for itself and for and on behalf of other Group Members;

“Group Turnover” – means the aggregate turnover of all Group Companies originating in the United Kingdom covering the latest accounting period before the start of the Agreement.

“Holding Company” – as defined in the Companies Act 1985;

“Insolvency Event” means the Scheme or Member (or any Group Member) (as applicable) being unable to pay its debts as defined by Sections 123(1) and 268(1) of the Insolvency Act 1986 as amended or any corporate action, legal proceedings or other procedure or step is taken in relation to:

(a) the suspension of payments, a moratorium of any indebtedness, winding-up, dissolution, administration or reorganisation (by way of voluntary arrangement, scheme of arrangement or otherwise) other than a solvent liquidation or reorganisation;

(b) commence negotiations with one or more of your creditors with a view to rescheduling any of your indebtedness by reason of actual or anticipated financial difficulties;

(c) cease or threaten to cease to carry on business or apply for an interim order under Section 252 Insolvency Act 1986 or have a bankruptcy petition presented against you;

(d) a composition, assignment or arrangement with any creditor;

(e) the appointment of a liquidator, trustee in bankruptcy, receiver, administrator, administrative receiver, compulsory manager or other similar officer in respect of you or any of your assets; or

(f) enforcement of any security over any of your assets, or any analogous procedure or step is taken in any jurisdiction, or the making of an application or the giving of any notice by you or by any other person in respect of any of these circumstances.

“Member” – means a Member of the Scheme in accordance with the terms of this Agreement;

“Membership” means Membership of the Smart Comply packaging compliance scheme in accordance with this Agreement;

“Membership Year” covers the same period of time as a relevant Obligation Year (as set out in the Regulations) during which the Member’s membership of the Packaging Waste Scheme subsists

“Packaging Obligation Data Table” – means the data table produced by the Scheme derived of the packaging data provided by the Member displaying the packaging handled and the Producer Recycling Obligations;

“Preceding Year” – the calendar year immediately preceding the current Membership Year;

“PRN” – means a packaging waste recovery note or packaging export recovery note (PERN) as set out in the Regulations;

“Producer Responsibility Obligations” – the Producer Responsibility Obligations as set out in the Regulations;

“Producer Recycling Obligations” – the packaging recycling obligations as set out in the Regulations;

“Registration Fee” – means the fee payable by the Member for the Membership Year;

“Regulations” – means Producer Responsibility Obligations (Packaging Waste) Regulations 2007 in force in England and Wales, the Producer Responsibility Obligations (Packaging Waste) Regulations (Northern Ireland) 2007, the Producer Responsibility Obligations (Packaging Waste) Regulations 2007 in force in Scotland, The Packaging Waste (Data Reporting) (England) Regulations 2023, as appropriate to the jurisdiction in which you are operating, including any subordinate legislation made under them or any amendments, re-enactments or consolidation thereof;

“Scheme” – means the Packaging Compliance Scheme operated by us and accredited by the Agency;

“Scheme Registration Form” – the registration form to become a member of the Scheme;
“Subsidiary” – as defined in the Companies Act 1985;

“Turnover” – the turnover of the Member originating in the United Kingdom covering the latest accounting period ending before the start of the Agreement;

 

2. INTRODUCTION

2.1 In this Packaging Compliance Scheme Membership Agreement, this “Agreement”, unless
otherwise specified the headings are for convenience only and any reference to this Agreement shall include any agreed variation, amendment or supplement to such document. Furthermore, any reference to any statute shall include any amendment, modification, consolidations or re-enactment and to any regulation or subordinate legislation made under it.

2.2 This Agreement constitutes a contract between the Scheme and the Member and shall be binding upon both parties for the duration of this Agreement.

2.3 This Agreement shall be deemed to have commenced upon receipt by the Scheme of the Scheme Registration Form completed and signed by either the Member or the Member’s authorised representative.

2.4 This Agreement shall remain binding upon both parties until the Member ceases to be a Member of the Scheme.

2.5 This Agreement is intended to ensure that the Member complies fully with the Regulations and that Scheme is able to operate as required by the Regulations and any statutory guidance pertaining to the Regulations.

 

3. OUR OBLIGATIONS TO YOU

3.1 Subject in the case of each Member, to that Member complying with this Agreement, and whilst the Scheme remains registered for the purposes of the Regulations, the Scheme undertakes to use such skill and expertise reasonably to be expected from an operator of a packaging compliance scheme registered under the Regulations to perform its obligations in accordance with the Regulations for the purposes of satisfying the Producer Responsibility Obligations of each Member or Group Member for the duration of this Agreement including the Member’s Consumer Information Obligations.

3.2 Subject to Clause 10.2, we will register you, and any applicable Group Members, as a member of the Scheme and we will meet your Producer Recycling Obligations.

3.3 Our obligations to you shall cease upon the cancellation of the Scheme under the Regulations.

 

 4. YOUR OBLIGATIONS TO US

1.1 You shall (and each Group Member shall):

(a) co-operate fully with us to enable us to fulfil our obligations under this Agreement and the Regulations and make use of and comply with any guidance from us in calculating and reviewing your Producer Recycling Obligations;

(c) fulfil your relevant Producer Responsibility Obligations (including your Producer Recycling Obligations) only through the Scheme while you and each Group Member are members of the Scheme;

(d) keep records of all the information you provide to us for a minimum of four (4) years or as otherwise required by the Regulations;

(e) provide us with any information and in such a format as we may reasonably require to discharge, verify or validate your Producer Recycling Obligations within the timescales we indicate to you; and

(g) sign any forms we may reasonably request from you or any of your Group Members to enable us to satisfy our obligations to the Agency.

4.1 You (and each Group Member) warrant and represent to us that:

(a) you (and each Group Member) will hold and maintain all rights to enter into and perform your (respective) Producer Recycling Obligations in connection with your Membership; and

(b) all information provided to us by you (or each Group Member) in connection with your Membership (including, but not limited to, company ownership, business activities, place of business, contact detail, and turnover (etc) is not false, incomplete or inaccurate and that you have taken all reasonable steps to verify its accuracy. You shall inform us as soon as possible, but within 28 days, from the date on which you become aware that any information you (or each Group Member) have provided to us has changed.

(c ) that any packaging handled weight data you provide to us is as accurate as reasonably possible.

4.2 You (and any Group Member) agree to comply with our reasonable requirements to provide information in connection with Membership of the Scheme and to allow us, upon reasonable notice access to any appropriate records for the purpose of verifying any information provided by you (or any Group Member) that is required by us or the Agency.

4.3 You (and any Group Member) acknowledge and agree that we may provide copies of any of the information supplied by you to us to the Agency or to any other person as is required by law without being in breach of this Agreement or our obligation of confidentiality to you (or any Group Member).

4.4 The Member shall provide packaging handled data to the Scheme by a date specified by the Scheme or no later than the 28 February, whichever is soonest, of each Membership Year in a format satisfactory to the Scheme in order for the Scheme to calculate and produce the Member’s Packaging Obligation Data Table.

4.5 The Packaging Obligation Data Table must be signed by either an Approved Person or a Delegated Approved Appropriate Person on behalf of the Member.

4.6 New members who join after April 15 in any Membership Year must provide their packaging handled data and all details necessary in a timely manner to enable the Scheme to calculate their obligation so that the Packaging Obligation Data Table can be produced and signed by either an Approved Person or Delegated Approved Appropriate Person from the Members’ organisation b yDecember 10 at the latest and have paid all fees by then.

4.7 All existing Member data resubmissions must be completed in a timely manner to enable the Scheme to calculate their obligation so that the Packaging Obligation Data Table can be produced and signed by either an Approved Person or a Delegated Approved Appropriate Person from the Members’ organisation by December 10 at the latest and have paid all fees by then.

4.8 For the avoidance of doubt, the Member hereby agrees that the Compliance Charges shall be final and binding upon the Member.

4.9 The Member hereby acknowledges and agrees that any advice provided to it by the Scheme is for the Member’s use only and the Scheme will not be responsible to any other person except the Member in respect thereof.

5. GROUP MEMBERSHIP

5.1 You may apply to join the Scheme as a Group Member or add any subsidiaries or holding company as a Group Member by completing a Group Membership Application Form. We and you (and any Group Members who have been admitted and are for the time being parties to this Agreement) agree to admit to this Agreement any other company in your Group whom we have accepted as a new Group Member.

5.2 When completing the Group Membership Application Form, you warrant that you have authority to enter into the Agreement on behalf of each company in the Group

5.3 If at any time during the term of this Agreement you wish to change any of the Group Members included in your Group Membership you shall:

(a) submit a Group Membership Application Form in accordance with Clause 5.1 if you wish
to add a new group member; or

(b) inform us in writing if you wish to remove a group member from the Scheme.

5.4 An alteration to the Group Membership shall take effect:

(a) in the case of the addition of a new Group Member pursuant to Clause 5.3(a), from the date on which we confirm to you in writing that we accept the new Member (as identified in the Group Membership Application Form) as a Group Member, or

(b) in the case of the removal of a Group Member pursuant to Clause 5.3(b), from the relevant termination date in accordance with Clause 10.3 and 10.4.

5.5 When any company leaves or joins the Group Membership the Member shall comply with the Scheme’s reasonable requirements to supply revised calculations of the Group Mmeberships Producer Recycling Obligations under the Regulations in the format and within the time limit prescribed by the Scheme.

 

6. MEMBERSHIP RENEWAL

6.1 The Agreement will automatically renew on expiry of the Membership Year to a new Membership Year to which the terms and conditions set out in this Agreement shall apply.

 

7. FEES

7.1 The Member shall be liable for a Fee in respect of the Membership Year or part thereof which shall comprise a Membership Fee which is a flat rate annual Fee payable upon joining the Scheme, and then on an annual basis in respect of each calendar year.

7.2 The Fees will also include the latest Agency Fees including the registration Fee payable to the Agency as set out in the Regulations and any other Fees charged by the Agency in respect of the members’ late registration or resubmission of data.

7.3 The Fees will also include a PRN charge invoiced quarterly or otherwise agreed between Scheme and Member in respect of the cost of providing evidence of the Scheme’s compliance with the Regulations on behalf of the Member. It may sometimes be necessary for a reconciliation adjustment at the end of the Membership Year.

7.4 If sums payable by the Member to the Scheme are late on multiple occasions and a debt recovery service is instructed by the Scheme, the member will be liable for the additional fees incurred. The Scheme will make reasonable attempts to resolve outstanding payments directly and will only consider debt recovery if the Member is unresponsive.

7.5 If any Fees payable by the Member to the Scheme remains unpaid more than 30 days after the date of Application, the Member shall pay interest on that sum at the rate decided upon by the Scheme and such interest is to be calculated on a daily basis from the date on which such sum became due.

7.6 No payments made by a Member on behalf of any group company that leaves the Scheme in the course of any Membership Year will be refunded.

7.7 The Member will, where an Application is after the commencement of the Membership Year, be invoiced for Compliance Charges for the full Membership Year to date.

7.8 All invoices issued to the Member shall be paid within 30 days of the issue of an invoice in respect thereof by the Scheme.

7.9 All sums payable under this Agreement are exclusive of any value-added tax and any sales or similar taxes.

7.10 Fees are paid as a deposit and are non-refundable.

 

8. CONFIDENTIALITY

8.1 The Scheme will hold all documents and information received in connection with the performance of the Agreement in strict confidence.

8.2 Such documents and information will not be disclosed by the Scheme to any third party except under the requirements of the Regulations, without the permission of the Member unless a duty to disclose is imposed under statute or by court order.

8.3 Information provided by you (or any Group Member) shall be processed in accordance with the Data Protection Act 1998 and The General Data Protection Regulations.

 

9. INDEMNITY

9.1 The Member hereby agrees to indemnify and keep indemnified the Scheme from and against all demands, claims, liabilities, losses, damages, (for loss of profit or otherwise) costs and expenses (including all legal and other costs and expenses) whatsoever in connection with any failure by the Member to comply with this Agreement, the Regulations, and in connection with the provision by the Member to the Scheme of any false, inaccurate, misleading, late or incomplete information or information failing to the standard of accuracy required by the Agency.

 

10. DURATION AND TERMINATION

10.1 The Scheme may terminate the Member’s Membership by notice in writing with immediate effect in the event of any breach by the Member of any of its Obligations under this Agreement.

10.2 The Scheme shall be entitled to terminate the Member’s Membership of the Scheme by notice in writing to take effect immediately or at such time as may be specified in such notice in the following circumstances:

(a) failure by a Member to pay to the Scheme any sum due to the Scheme under this Agreement within 14 days of the due date for payment thereof, or we have reasonable grounds to believe that you (or a Group Member) may be unable to pay any Fees (current or future) as they fall due.

(b) an Insolvency Event occurs in respect of you (or any Group Member).

(c) The Scheme (acting reasonably) believes it is in the best interests of the other Members as a whole to terminate the Member’s Membership of the Scheme.

(d) the Agency refuses your (or any Group Member’s) Membership of the Scheme or evokes your (or any Group Member’s) Membership of the Scheme.

(e) the Regulations are revoked or otherwise amended so that the Scheme is deemed unlawful or ineffective. These termination provisions are without prejudice to the general right of termination contained in Clause 10.1.

10.3 The Member may terminate its Membership by giving notice in writing to the Scheme prior to 30 June with such termination taking effect at the end of the Membership Year in which it is received.

10.4 Where notice to terminate is served by the Member after 30 June in the Membership Year, such termination will take effect at the end of the Membership Year following the Membership Year in which the notice is submitted.

10.5 The termination of Membership for whatever cause shall not affect any provision of this Agreement which is expressed to survive or operate in the event of such termination and shall not prejudice or affect the right of either party against the other in respect of any breach of this Agreement or any monies payable by one party to the other in relation to any period prior to termination and in particular without limitation shall not affect the entitlement of the Scheme to any PRN’s made available to it in accordance with this Agreement prior to termination.

 

11. FORCE MAJEURE

11.1 No Party shall be deemed to be in breach of the terms herein by reason of any delay in performing or failure to perform any of its obligations as set out herein to the extent that such delay or failure is due to a Force Majeure Event.

 

12. GENERAL DECLARATIONS

12.1 All sums payable under this Agreement by the Member are stated to be exclusive of VAT or any similar impost or levy which the Member shall be obliged to pay in addition to all such sums.

12.2 The Member shall not be entitled to assign or transfer any of its rights or obligations under this Agreement without the prior consent of the Scheme.

12.3 The Scheme may at any time amend any provision of this Agreement and any such amendment shall become binding upon the Member and the Scheme immediately in the case of the amendment being required in order to comply with the Regulations and/or any other legislation or regulations or 30 days after the Scheme has published or otherwise notified the Member of such amendment.

12.4 Upon application for Membership of the Scheme, the Membership of a Producer is only secured at the point of the Scheme has received all due monies and Fees and the Scheme having also received all required packaging handled data from the Producer in the Scheme required format. Members of the Scheme that have not submitted registration details, packaging handled data and payment of Fees by the April 15 of the Membership Year are not a legal member of the Scheme for compliance purposes but still have contractual obligations as a Member.

 

13. NOTICES

13.1 Any notice given or made under this Agreement shall be in writing and may be delivered to the relevant party or sent by post to the address of that party as shall have last been notified in writing by that party to the other party.

13.2 Each notice or communication shall be deemed to have been given or made and delivered if by a letter 48 hours after posting or if by delivery when left at the relevant address.

 

14. GOVERNING LAW

14.1 The Agreement shall be governed by and construed in all respects in accordance with English Law and the parties agree to submit to the exclusive jurisdiction of the English Courts as regards any claim or matter arising in relation to the Agreement.

 

15. ANTI-CORRUPTION

15.1 The Scheme is and will remain in compliance with the laws of United Kingdom applicable to the services it will perform under this Agreement.

15.2 The Scheme will not, and nor will any of its officers, employees, shareholders, representatives or agents, directly or indirectly, either in private business dealings or in dealings with the public sector, offer, give or agree to offer or give (either itself or in agreement with others) any payment, gift or other advantage with respect to any matters which are the subject of these terms and conditionswhich:

(a) would violate any anti-corruption laws or regulations applicable to the Scheme.

(b) is intended to, or does, influence or reward any person for acting in breach of an expectation of good faith, impartiality or trust, or which it would otherwise be improper for the recipient to accept.

(c) is made to or for a Public Official with the intention of influencing them and obtaining or retaining an advantage in the conduct of business or

(d) which a reasonable person would otherwise consider to be unethical, illegal or improper.

15.3 For the purposes of this Agreement, “Public Official” includes, without limitation, any person holding or acting on behalf of a person holding a legislative, administrative or judicial office, including any person employed by or acting on behalf of a public agency, a state owned or public enterprise, a public international organisation, any federal or regional government department or agency, any political party, any candidate for political office or a relative or associate of any such person.

15.4 To the best of its knowledge and belief, the Scheme:

(a) has not at any time been found by a court in any jurisdiction to have engaged in any Corrupt Act (or similar conduct);

(b) has not at any time admitted to having engaged in any Corrupt Act (or similar conduct); and

(c) has not at any time been investigated or been suspected in any jurisdiction of having engaged in any Corrupt Act (or similar conduct).

 

16. ASSIGNATION

We may assign, novate or otherwise transfer all or any of our rights and obligations under this Agreement to another person provided that, in our reasonable opinion, such person is of sufficient standing to be able to discharge our liabilities under this Agreement. In such circumstances you, promptly following our request, shall execute all such further deeds and documents as we may require to give effect to such assignment, novation or transfer.

 

17. ENTIRE AGREEMENT

17.1 This Agreement sets out the entire agreement between you (and any Group Member) and us relating to your Membership of the Scheme and supersedes all prior oral or written agreements, arrangements or understandings between you and us.

17.2 You (and any Group Member) acknowledge and agree that you (or any Group Member) have not become a Member or joined the Scheme on the basis of any representation, covenant, undertaking, agreement, term or condition not set out in or expressly incorporated by reference into this Agreement applicable to you.

 

18. MISCELLANEOUS

18.1 If any provision of this Agreement shall be declared invalid, unenforceable or illegal it may be severed from this Agreement and shall not prejudice or affect the validity, enforceability and legality of the remaining provisions of this Agreement.

18.2 Save as expressly provided for in this Agreement, a person who is not party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

18.3 You (and each Group Member) shall immediately notify us of any and all enforcement notices and/or proceedings or threats of the same (including but not limited to injunction proceedings) issued or taken by any Agency against you under the Regulations and provide copies of all relevant correspondence and other documents to us, as well as details of any convictions you have for any offence under the Regulations.

18.4 No party shall be deemed to be in breach of the terms herein by reason of any delay in performing or failure to perform any of its obligations as set out herein to the extent that such delay or failure is due to a Force Majeure Event.

18.5 No failure or delay by a party in exercising any right, power or privilege under this Agreement shall operate as a waiver of such right, power or privilege nor shall any single or partial exercise by either party of any right, power or privilege preclude any further exercise thereof or the exercise of any right, power or privilege.