Dated: 16 February 2021
1.1 Auctions in the New Zealand Emissions Trading Scheme are established under the Act and Auction Regulations. Auctions give Auction Participants the opportunity to purchase New Zealand units from the Crown. In summary:
1.2 Auctions are held in the online Auction Platform, that is provided by the Auction Operator. Legal ownership of New Zealand units is recorded in the Register. The Register is separate to the Auction Platform. It is provided by the EPA and the Registrar is responsible for its operation.
1.3 The Auction Operator (NZX) acts as an auction operator under section 6A(b) of the Act. The Auction Operator:
When acting as auction operator, the Auction Operator is not a party to the sale and purchase of New Zealand units and does not hold settlement proceeds and/or collateral.
1.4 The Ministry also acts as an auction operator under section 6A(b) of the Act. The Ministry:
2.1 These Auction Participant Terms (Terms) supplement the terms of the Act and the Auction Regulations. To the extent there is any inconsistency between these Terms and the Act or the Auction Regulations, the Act and Auction Regulations (as applicable) will prevail.
2.2 Each Applicant must agree to be bound by these Terms before applying to register as an Auction Participant. If an Applicant and/or Auction Participant does not agree to the Terms, the Applicant or Auction Participant (as applicable) must not access and/or use the non-public (i.e. Auction Participant only) functions and/or information in the Auction Platform.
2.3 It is up to each Applicant and Auction Participant to ensure that each of its Representatives who accesses the Auction Platform:
2.5 The Auction Operator can amend or replace these Terms at any time, by giving Applicants and Auction Participants who are affected by the change 30 days' notice before the change comes into effect. However, the Auction Operator may change or replace these Terms with immediate effect on notice to Applicants and Auction Participants if the Auction Operator believes the amendment or replacement is necessary to ensure compliance with the Act or the Auction Regulations, or to otherwise ensure proper conduct of Auctions or use of the Auction Platform. The Auction Operator does not require the agreement of any party to amend or replace these Terms, other than the Ministry.
3.1 When an Applicant agrees to these Terms it is entering into a binding agreement with the Ministry. These Terms, and that agreement, continue to apply to any Applicant that subsequently becomes an Auction Participant. As such:
3.2 The following provisions are for the benefit of, and are directly enforceable by, the Auction Operator against each Applicant and Auction Participant:
4.1 To apply to become an Auction Participant, an Applicant must comply with the requirements for registration under the Auction Regulations, which include:
4.2 Once the Auction Operator is satisfied that:
the Auction Operator will:
4.3 Until an Applicant has become an Auction Participant, the Applicant must not participate or attempt to participate in any Auction.
4.4 Before a Representative of an Auction Participant accesses the Auction Participant’s Auction Platform Account, the Representative must:
4.5 Once the Auction Operator has verified the Representative’s identity, the Representative will be deemed to be a User for the purpose of these Terms. The Auction Operator will enable the User to log on to their Auction Participant’s Auction Platform Account using the User’s existing RealMe account.
5.1 Each Auction Participant must provide collateral as instructed by the Ministry and in accordance with the requirements of the Auction Regulations.
5.2 At least 5 Working Days before an Auction Participant submits a Bid, the Auction Participant must:
5.3 Each Auction Participant must review their Auction Platform Account promptly after submitting collateral to confirm that the collateral has been lodged against its Auction Platform Account. If the Auction Participant considers that any collateral is missing, it must as soon as reasonably practicable notify the Auction Operator of the error.
5.4 The Ministry will return any unused collateral in accordance with the Auction Regulations.
6.1 Each Auction Participant is entitled to place a Bid on an Auction, provided that the Auction Participant:
6.2 Each Auction Participant must periodically review its Auction Platform Account, particularly in the period leading up to an Auction, to confirm it is entitled to Bid in an upcoming Auction. If the Auction Participant considers it is entitled to Bid in the Auction but the Auction Platform Account does not show that status, the Auction Participant must as soon as reasonably practicable notify the Auction Operator of any error.
7.1 The Crown is the sole authorised seller of New Zealand units on the Auction Platform.
7.2 When an Auction Participant submits a Bid for New Zealand units in accordance with these Terms, their Bid will be deemed an offer capable of acceptance. If the Crown accepts the Bid, that acceptance will create a legally binding contract between the Auction Participant and the Crown for sale and purchase of the allocated New Zealand units. This sale and purchase contract will be subject to and completed in accordance with the Auction Regulations and these Terms.
7.4 If an Auction Participant purchases New Zealand units at an Auction, then following completion of the Auction, the Auction Operator will notify the Auction Participant that an invoice is available for viewing via the Auction Participant’s Auction Platform Account. The Auction Participant must settle this invoice in accordance with the Auction Regulations and otherwise in accordance with any instructions on the invoice.
7.5 New Zealand units will be transferred to the Register Holding Accounts of the relevant Auction Participants within a reasonable period of time following an Auction. Auction Participants must review their Register Holding Accounts within 7 Working Days of an Auction in order to confirm that any New Zealand units they purchased have been properly lodged in their Register Holding Account. If an Auction Participant considers that any New Zealand units are missing from its account, it must as soon as reasonably practicable notify the Auction Operator and the Registrar of any error.
8.1 Auction Participants may use the Auction Platform for the purpose of participating in Auctions and completing the sale and purchase of New Zealand units in accordance with the Act, the Auction Regulations and these Terms, and for no other purpose. No Auction Participant may make the Auction Platform available to any Third Party by renting, timesharing, or via a subscription or bureau service.
9.1 No Applicant or Auction Participant may (and must ensure that their Representatives do not):
10.1 The Auction Operator may require additional declarations, or other evidence from any Applicant, Auction Participant and/or any of their Representatives, throughout the Auction process to ensure compliance with these Terms and probity of all Auction processes to the Auction Operator’s satisfaction.
11.1 Each Auction Participant must:
11.2 Unless an Auction Participant notifies the Auction Operator in advance, the Auction Operator is entitled to rely on any request, instruction, information or Bid received from or made through the Auction Participant’s Auction Platform Account if the Auction Participant’s Auction Platform Account has been accessed using the correct username and password.
11.3 Each Auction Participant must maintain, and must ensure that its Representatives maintain, the security of its Auction Platform Account login details and passwords and must prevent disclosure of login details and passwords to any other person. If an Auction Participant knows, suspects or ought reasonably know or suspect that any login details and/or password has been disclosed to any other person, the Auction Participant must immediately notify the Auction Operator by email to the address set out in the “Contact us” section of the Auction Platform.
12.1 No Auction Participant may:
12.2 The Auction Operator may monitor Auctions and provide ongoing monitoring of market activity.
12.3 Any suspected fraudulent, collusive, criminal or anticompetitive conduct may be reported by:
together with all relevant information, including information about each Auction Participant’s Bid and conduct.
13.1 The Ministry or Auction Operator may suspend (including restrict) any Auction Participant’s (and as a consequence all its Users’) access to or use of its Auction Platform Account and/or the Auction Platform, if the Ministry or Auction Operator considers it reasonable to do so, including where:
13.2 When taking action under clause 13.1, the Ministry or Auction Operator (the Suspending Party) is not required to give the affected Auction Participant notice in advance, but will promptly notify them in arrears of the action taken. That said, where the action is due to a breach of these Terms, the Suspending Party will normally give the affected Auction Participant prior notice and a reasonable opportunity to avoid the action by demonstrating to the satisfaction of the Suspending Party that the breach has been resolved and will not be repeated.
13.3 If an Auction Participant objects to any action taken by the Suspending Party under clause 13.1, it must notify the Suspending Party, within 10 Working Days of receiving notice of the action under clause 13.1, of the grounds for its objection and what it would like the Suspending Party to do. After considering the objection, the Suspending Party may reverse its action (to extent practicable) or take a different action under clause 13.1. Where the Suspending Party is the Auction Operator, the Auction Participant may only escalate the matter to the Ministry if the matter is not resolved to the Auction Participant’s reasonable satisfaction within 10 Working Days of it notifying its objection to the Auction Operator under this clause.
13.4 Suspension under this clause 13 will not affect an Auction Participant’s contractual obligations or liability under these Terms.
14.1 The Ministry may permanently terminate an Auction Participant’s (and as a consequence all its Users’) access to or use of its Auction Platform Account and/or the Auction Platform, if the Ministry considers it reasonable to do so, including where the Auction Participant:
14.2 When taking action under clause 14.1, the Ministry will:
14.3 Termination of access to the Auction Platform Account or Auction Platform does not limit the rights or remedies of any party that accrued prior to the date of termination. The following clauses survive termination:
15.1 Each Applicant and Auction Participant will treat as confidential, not use for its own purposes, and not disclose to any Third Party, any of the Auction Operator’s or the Ministry’s Confidential Information, provided that such Confidential Information may be used by:
15.2 Except as otherwise provided in the Act, the Auction Regulations or these Terms, the Ministry and Auction Operator will take all security safeguards as are reasonable in the circumstances to not disclose to any Third Party, any Applicant’s or Auction Participant’s Confidential Information. The Ministry and Auction Operator are only entitled to:
15.3 This clause 15 will not prevent disclosure of Confidential Information:
17.1 Except as expressly set out in these Terms, nothing in these Terms confers on any Applicant or Auction Participant, any right title or interest in the intellectual property or other rights of the Auction Operator, Ministry or EPA.
17.2 All text, graphics, logos, button icons, images, data compilations and software displayed on the Auction Platform are subject to copyright and other intellectual property protection.
18.1 Each Applicant and Auction Participant is responsible and liable for all acts and omissions of its Representatives.
18.2 The Auction Operator does not guarantee that the Auction Platform will be secure, uninterrupted or error-free, but will use reasonable care and skill and use reasonable endeavours to ensure that the Auction Platform is:
All implied warranties (such as fitness for purpose, merchantability and non-infringement) are excluded and disclaimed, to the extent legally permissible.
18.3 Each Auction Participant uses the Auction Platform at its own risk, provided that the risk of loss of any:
18.4 In the event of loss of any money or negotiable instrument for which the risk of loss resides with the Ministry under clause 18.3, the Ministry will be liable to the Auction Participant for the direct cost of replacing that money or negotiable instrument, but:
18.5 To the maximum extent permitted by law, the Ministry will not be liable to an Applicant or Auction Participant (or their respective Representatives) under or in relation to these Terms, or in relation to any Auction or the Auction Platform, for any:
18.6 If for any reason the Ministry’s liability to an Applicant or Auction Participant (or their respective Representatives) has not been excluded by clause 18.5, and except for the Ministry’s liability under clause 18.4, the Ministry’s total aggregate liability to that Applicant or Auction Participant (and all of their Representatives in aggregate with that Applicant or Auction Participant) under or in relation to these Terms, or in relation to any Auction or the Auction Platform, is, to the maximum extent permitted by law, limited to $1,000 in aggregate.
18.7 The limitations and exclusions of liability in clause 18 (Liability) apply irrespective of how the liability arises, whether in contract, equity, tort (including negligence), breach of statutory duty or otherwise.
19.1 Any notice or other communication to be given in connection with these Terms by the Ministry or Auction Operator to an Applicant, Auction Participant and/or User may be given by:
19.2 Any notice or other communication to be given in connection with these Terms by an Applicant or an Auction Participant to:
Any requirement in these Terms for Applicants or Auction Participants to give notice to the Auction Operator, is not satisfied by them giving notice to the Ministry.
19.3 A notice or other communication to be given in connection with these Terms will be deemed to be given:
20.1 If the Ministry or Auction Operator exercises or fails to exercise any right or remedy available to it under these Terms, this will not limit the Minister for Climate Change, Ministry or Auction Operator from exercising any rights or remedy at any future time.
20.2 If any term of these Terms is deemed invalid, void or unenforceable, that term will be deemed severable and will not affect the validity and enforceability of any remaining terms.
20.3 No Applicant or Auction Participant may assign, sub-contract or transfer its rights or obligations under these Terms without the prior written consent of the Ministry.
20.4 These Terms are governed by the law of New Zealand and each party irrevocably and unconditionally submits to the non-exclusive jurisdiction of the courts of New Zealand.
21.1 In these Terms, unless the context requires otherwise:
Act means the Climate Change Response Act 2002.
Applicant means an entity or person holding a Register Holding Account who seeks access to the Auction Platform as an Auction Participant.
Auction means an auction for the sale of New Zealand units by the Crown via the Auction Platform.
Auction Operator means NZX acting in the capacity as auction operator.
Auction Participant means an Applicant that has received notice from the Auction Operator that the Applicant has been approved and registered as a registered bidder in accordance with the Auction Regulations and these Terms.
Auction Platform means the New Zealand Emissions Trading Scheme auction platform operated by or on behalf of the Auction Operator, including the platform’s website (www.etsauctions.govt.nz) and infrastructure.
Auction Platform Account means an account on the Auction Platform for the purpose of participating in Auctions.
Auction Regulations means all regulations under the Act applicable in connection with an Auction Participants’ participation on the Auction Platform.
Bid means a bid for the purchase of New Zealand units made by an Auction Participant on the Auction Platform.
Confidential Information means all information provided or made available under or in connection with these Terms by:
Crown has the meaning given to it in the Auction Regulations.
EEX means European Energy Exchange A.G.
EPA means the Environmental Protection Authority.
Ministry means Ministry for the Environment.
New Zealand unit has the meaning given to it in the Act.
NZX means NZX Limited.
Personal Information has the meaning given to it in the Privacy Act 2020.
Professional Adviser means an accounting, insurance, banking, auditing, tax, or legal services professional.
Register means the system that provides for accounting of the issue, holding, transfer, surrender and cancellation of New Zealand units.
Register Holding Account has the meaning given to it in the Act. At the date of these Terms, it means an account in the Register for the purpose of holding New Zealand units.
Register of Bidders means the list of Auction Participants established and maintained by the Auction Operator in accordance with the Auction Regulations.
Registrar means the registrar appointed under section 11 of the Act, who is responsible for the operation of the Register on behalf of the Crown.
Registration Requirements means all requirements under the Act, the Auction Regulations and these Terms that must be met for an Applicant to become an Auction Participant.
Representative includes in respect of any person or entity, its employee, agent, officer, independent individual contractor or individual working under the direction of that person or entity, and any subcontractors used by such person or entity.
Third Party means any party or entity in relation to the Auction Platform that is not the Minister for Climate Change, the Crown, the Ministry or the Auction Operator.
User means a Representative of an Auction Participant who is authorised by the Auction Participant to access the Auction Participant’s Auction Platform Account, and whose identity has been verified by the Auction Operator.
Working Day has the meaning given to it in the Auction Regulations.
21.2 In the interpretation of the Terms, unless the context requires otherwise: