AUSTRALIAN CUSTOMS PROFESSIONALS TERMS & CONDITIONS OF TRADE
In these Terms & Conditions, the following defined
terms will have the following defined meanings.
1.1 “ABN” means the Australian Business Number of the Customer pursuant to the GST Law;
1.2 “ACS” means the Australian Customs Service;
1.3 “Agreement” means these Terms & Conditions;
1.4 “AQIS” means the Australian Quarantine
1.5 “Assets” mean all assets, goods, documents and
records of the Customer held by ACP as part of the
contractual terms and Terms & Conditions for the
appointment of ACP, and include, without limitation,
1.6 “ATO” means the Australian Taxation Office;
1.7 “Authorisation” means the appointment and
authorisation of ACP to act on behalf of the Customer
on the terms and conditions of this Agreement;
1.8 “Authorised Signatory” means the party who
signs the Application for a Credit Account or Letter
of Authority on behalf of the Customer;
1.9 “Business Day” means any day that is not a
Saturday or Sunday on which banks are open for
general banking business in Brisbane;
1.10 “Carriage” means vehicles and conveyances of
all kind including acts in furtherance of an act of
carriage by another or a specific means, whether by
air, sea or land transport;
1.11 “Carrier” means any party involved in the
carriage of Goods whether by airfreight, seafreight
or land transport;
1.12 “ACP” means Barratt & Wallace Pty Ltd as
trustee for Barratt & Wallace Trust ABN 97 136 198
795 trading as Australian Customs Professionals and
its nominees, agents, sub-agents and employees;
1.13 “Customer” means the customer named in the
Application for a Credit Account or Letter of
Authority and will include all employees, officers,
agents and contractors of the Customer;
1.14 “Customs Act” means the Customs Act 1901 (as
amended), and any succeeding legislation and any
regulations made pursuant to the Customs Act;
1.15 “Customs Related Law” has the same meaning
as in Section 4 of the Customs Act;
1.16 “Dangerous Goods” means cargo which is
noxious, hazardous, inflammable, explosive or
offensive (including radioactive materials) or may
become noxious, hazardous, inflammable, explosive
or offensive or radioactive and may become liable to
cause damage to any person or property whatsoever;
1.17 “Debts” means all amounts owing by the
Customer to ACP on any account whatsoever;
1.18 “Fees” means the fees charged by ACP for
provision of the Services;
1.19 “Goods” are any goods or items which are the
subject of the Services provided by ACP to the
Customer under this or any other Agreement;
1.20 “Government Authorities” means all
Government Departments with responsibility for the
import and export of goods, the collection of
revenue on the import and export of goods and the
transport of those goods, including but not limited to,
ACS, AQIS, the ATO and the RSE;
1.21 “GST” has the same meaning as under the GST
Law and means the Goods and Services Tax imposed
under the GST Law;
1.22 “GST Law” means the A New Tax System
(Goods & Services Tax) Act 1999;
1.23 “GST Rate” means the rate of GST under the
1.24 “Laws” means any laws or regulations of any of
the Commonwealth of Australia, or any of the States,
Territories or Municipalities of Australia;
1.25 “Occupational Health & Safety” means the
Workplace Health and Safety Act 1995 (Qld) (WHSA),
all associated regulations or guidelines and any
other relevant State or national Occupational Health
& Safety legislation, regulations or guidelines;
1.26 “Privacy Laws” means the Privacy Act 1988, all
associated regulations or guidelines, and any other
associated or relevant State or national privacy
legislation, regulations or guidelines;
1.27 “Reporting Obligations” means the obligations
to report the arrival, carriage and movement of
goods pursuant to the Customs Act or any Customs
Related Law or as required by any Government
1.28 “Related Body Corporate” has the same
meaning as under the Corporations Act 2001;
1.29 “RSA” means those State and Commonwealth
Government Authorities in Australia responsible for
road safety and the laws governing the carriage of
goods by road;
1.30 “Services” are the rights, benefits, privileges or
facilities that are or are to be provided, granted or
conferred under a contract for or in relation to the
performance of work by ACP for the Customer, to
include, without limitation:
(a) to make any reports, entries and declarations
required by any Government Authorities;
(b) to quote the Customer’s ABN as may be required
under the GST Law;
(c) to provide all necessary information and
complete all necessary documentation and reports
for the purposes of any Government Authorities; and
to enter into contracts with subcontractors on behalf
of the Customer to enable the carriage, import,
export or transportation of the Goods;
1.31 “Standards” means Australian industry
1.32 “Subcontractor” means any third party
appointed by ACP to assist in the provision of the
1.33 “Supply” means the same as in the GST Law;
1.34 “Taxable Supply” means any Supply under
these Conditions in respect of which ACP is or may
become liable to pay GST;
1.35 “Vessel” means any vessel, vehicle or aircraft
used to effect carriage of the Goods, whether by sea,
land or air;
1.36 “Warsaw Convention” means the Convention
for the Unification of Certain Rules Relating to
International Carriage by Air dated 12 October 1929
as amended at the Hague, 1955 and supplemented
by the Guadalajara Convention dated 18 September
1961 as applied respectively by the legislation of the
Commonwealth of Australia and of New Zealand;
1.37 “Authority” means a duly constituted legal or
administrative person, acting within its legal powers
and exercising jurisdiction within any nation, state,
municipality, port or airport;
1.38 “Customs Broker” means an authorised agent
appointed by the Customer to provide logistical and
associated services; and
1.39 “Owner” means the company or individual that
has clear title to the Goods.
2.1 All the rights, immunities and limitations of
liability contained herein shall continue to have their
full force and effect in all the circumstances
notwithstanding any breach of any term or condition
hereof or any collateral agreement by ACP and
notwithstanding that the Services have been
provided, the Goods delivered as directed by the
Customer or the agreement having expired or been
2.2 In the interpretation of these Terms & Conditions
the singular includes the plural and vice versa;
words importing one gender mean and include each
other gender; and words importing corporations
mean and include natural persons and vice versa.
2.3 No agent or employee of ACP or any Customer of
ACP has the authority to waive, modify, vary or
amend these Terms & Conditions unless ACP
management approves such waiver, modification,
variation or amendment in writing.
2.4 Any provision in these Terms and Conditions
which is invalid or unenforceable in any jurisdiction
must be read down for the purposes of that
jurisdiction, if possible, so as to be valid and
enforceable. If that provision cannot be read down
then it is capable of being severed to the extent of
the invalidity or unenforceability without affecting
the remaining provisions of these Terms and
Conditions or affecting the validity or enforceability
of that provision in any other jurisdiction.
2.5 References to clauses are references to clauses in
these Terms & Conditions.
2.6 Headings have no effect on interpretation of
these Terms & Conditions.
2.7 Terms not defined in these Terms & Conditions
will have the same meaning as defined in the
2.8 Subject to subclause 2.9 all services of ACP
whether gratuitous or not are undertaken subject to
these Terms & Conditions and not otherwise.
2.9 Where a document is issued by or on behalf of
ACP and bears the title of or includes the words, “bill
of lading” (whether or not negotiable), or sea or air
“waybill” and provides that ACP contracts as carrier,
the provisions set out in that document, if
inconsistent with these Terms & Conditions, shall be
paramount and prevail over these Terms &
Conditions to the extent that such provisions are
inconsistent but no further.
3. NATURE OF SERVICES
3.1 ACP acts as an agent and never as a principal
when providing services as a Customs Broker in
respect of or relating to customs requirements, taxes,
licenses, consular documents, certificates of origin,
inspection, certificates and other similar services or
when obtaining insurances for or on behalf of the
Customer or relating to the Goods (other than where
by law ACP is deemed to be an agent of the insurer)
or when providing any other services whatsoever for
or on behalf of the Customer.
3.2 ACP carries on business as a licensed Customs
Broker and forwarding agent. All Services provided
by ACP are governed solely by these Terms &
Conditions which shall prevail over the Customer’s
terms and conditions and any terms and conditions
contained in any transport document including any
bill of lading, waybill or consignment note except to
the extent provided for in these Terms & Conditions.
ACP is not a common carrier and will accept no
liability as such. ACP may refuse at its sole and
absolute discretion to accept any Goods for carriage
without assigning any reason.
3.3 ACP acknowledges that where terms of Carriage
are limited pursuant to convention, statute, law, bill
of lading or airway bill, and the transport of the
goods extends or requires transport outside and
beyond the terms provided for in that convention,
statute, law, bill of lading or airway bill then the
Customer may be required to enter into a further
contractual agreement with the forwarder or carrier
regarding that portion of transport in order to limit
liability on behalf of the forwarder or carrier, or
where the transport was unforseen, the limitation of
liability provisions in place for the foreseen transport
will extend to the unforeseen transport, even where
that liability provision does not envision transport of
4. COMMUNICATIONS WITH ACP
Wherever it is necessary, for the purpose of these
Terms & Conditions or any other purpose whatever,
for instructions to be given to ACP, such instructions
will be valid only if given in writing, acknowledged
by ACP in writing and given in sufficient time in all
the circumstances for ACP reasonably to be able to
adopt the instructions. Standing or general
instructions, or instructions given late, even if
received by ACP without comment, shall not be
binding upon ACP. If ACP adopts standing or
general instructions, or instructions given late, for
one or more transaction for the Customer or any
other party, that does not in any way affect the
validity of those instructions in relation to any future
transaction. No attempt by ACP to adopt late
instructions will constitute an acceptance by ACP or
affect the validity of those instructions.
5. DELIVERY BY POST
Notwithstanding any prior dealings between ACP
and the Customer or any rule of law or equity or
provision of any statute or regulation to the contrary,
any contracts, documents and other matter
(including cash, cheques, bank drafts and other
remittances) sent to ACP through the post shall be
deemed not to have been received by ACP unless
and until they are actually delivered to ACP at its
office address or placed in ACP’s post office box, if
6. ABILITY TO APPOINT AGENTS,
SUBCONTRACTORS & THIRD PARTIES
Subject to and in accordance with these Terms &
Conditions, the Customer hereby employs and
authorises ACP as agent for the Customer to contract
either in its own name as principal or as agent for the
Customer with any subcontractor for the carriage,
movement, transport or storage of the Goods or for
the performance of all or any part of the Services
pursuant to or ancillary to these Terms & Conditions.
7. COMPLETION OF SERVICES
ACP reserves complete freedom to decide the
manner or procedure to be adopted for any or all of
the various acts that will be necessary for the
completion of the Services. That discretion will be
varied only by instructions delivered by the
Customer to ACP in writing and acknowledged by
ACP in writing in sufficient time before the
performance of any service to reasonably allow ACP
to adopt the manner of performing the service
required by the special instructions.ACP
to adopt the manner of performing the service.
ACP SHALL HAVE NO LIABILITY OR RESPONSIBILITY
BY VIRTUE OF THE FACT THAT THERE MAY BE A
CHANGE IN THE RATES OF DUTY, WHARFAGE,
FREIGHT, RAILAGE OR CARTAGE, OR ANY OTHER
TARIFF BEFORE OR AFTER THE PERFORMANCE BY
ACP OR ANY ACT INVOLVING A LESS FAVOURABLE
RATE OR TARIFF, OR BY VIRTUE OF THE FACT THAT
A SAVING MAY HAVE BEEN EFFECTED IN SOME
OTHER WAY HAD ANY ACT BEEN PERFORMED AT A
DIFFERENT TIME AND WHETHER ITS
PERFORMANCE OF ANY OF THE ACTS AFORESAID
IS DELAYED OR PRECIPITATED THROUGH THE
NEGLIGENCE OF ACP OR ITS SERVANTS OR
AGENTS OR HOWEVER CAUSED.
9. PAYMENT, RECOVERY OF FEES
9.1 ACP is entitled to retain and be paid all
brokerages, commissions, allowances and other
remunerations customarily retained by or paid to
shipping and forwarding agents and (where ACP
accepts specific instructions under clause 20 to effect
insurance) insurance broker whether declared or
otherwise and no such brokerage, commission or
allowance or other remuneration shall be payable or
allowable to the Customer or its principal (if any).
ACP may charge by weight, measurement or value
and may at any time reweigh, remeasure or revalue
the Goods (or request same) and charge additional
9.2 ACP shall under no circumstances be precluded
from raising a debit in respect of any fee or
disbursements lawfully due to it, notwithstanding
that a previous debit or debits (whether excluding or
partly including the items now sought to be charged)
had been raised and whether or not any notice was
given that further debits were to follow.
9.3 All amounts due to ACP in Australia are payable
in Australian dollars. ACP is entitled to charge a
currency conversion premium when converting
receivables into Australian currency.
9.4 The Customer shall pay to ACP in cash, or as
agreed, all sums immediately when due, this being
on or before the payment date stipulated on ACP’s
tax invoice, without deduction or deferment on
account of any claim, counterclaim or set-off.
Quotations as to Fees and other charges are given on
the basis of immediate acceptance (time being of the
essence) and subject to the right of withdrawal or
revision by ACP. Quotations are valid only for the
specified weight and volume ranges quoted and for
the designated services and standard of services
quoted. If any changes occur in the rates of freight,
insurance premiums, warehousing, statutory fees or
any other charges applicable to the Goods, quotation
and charges are subject to revision accordingly with
or without notice to the Customer.
If ACP is or may become liable to pay GST in relation
to any Supply under these Terms & Conditions:
11.1 unless otherwise stated, all charges quoted are
exclusive of the GST imposed under the GST Law.
11.2 the Customer shall be responsible for payment
of any GST liability in respect of the Services as
provided by ACP or by third parties or
subcontractors which shall be payable at the same
time as the GST-exclusive consideration.
11.3 the Customer must also pay GST on the Taxable
Supply to ACP, calculated by multiplying the GST
exclusive consideration by the GST Rate;
11.4 GST shall be payable by the Customer without
any deduction or set-off for any other amount at the
same time as the GST exclusive consideration is
11.5 ACP agrees to provide the Customer with a Tax
Invoice to enable the Customer to claim Input Tax
11.6 if the Customer defaults in the payment on the
due date of any amount payable under subclause
11.7 then without prejudice to any other remedies of
ACP and upon demand by ACP, the Customer shall
pay to ACP an amount equal to the amount of any
damages or interest (as specified in clause 12 & 13)
or additional GST that may become payable by ACP
due to the default of the Customer.
ACP may charge interest at four per centum (4%)
above the commercial lending rate of the ANZ Bank
on amounts not paid within the time specified in the
Application for a Credit Account or Letter of
13. DAMAGES The Customer must pay to ACP any costs, expenses
or losses incurred by ACP as a result of the
Customer’s failure to pay to the ACP all sums
outstanding as owed by the Customer to ACP
including without limiting the generality of the
forgoing any debt collection and legal costs
incurred in enforcing payment on a solicitor and
own client basis.
ACP reserves the right to offset any amounts
receivable from the Customer against any amounts
payable to that Customer or any company affiliated
with the Customer or any Related Body Corporate of
the Customer. This right exists irrespective of the
date the liability has been created or debt incurred
ACP, its servants or agents shall have a special and
general lien on the Assets and a right to sell the
Assets whether by public or private sale or auction
giving twenty eight (28) days notice in writing to the
Customer, for freight, demurrage, detention charges,
duty, fines, penalties, salvage, average of any kind
whatsoever and without limitation and for any and all
debts, charges, expenses or other sums due and
owing by the Customer or the Customer’s principals,
servants or agents. In addition, the lien shall cover
the costs and expenses of exercising the lien of such
a sale including reasonable legal fees. The lien and
rights granted by this clause 15 shall survive
delivery of the Assets and ACP shall be entitled to
retain the proceeds of sale of the Assets in respect of
any outstanding amounts referred to in this clause.
16. CUSTOMER WARRANTIES
16.1 The Customer (on behalf of itself, the consignor
and the consignee) warrants to ACP that:
(a) it will provide all documents, information and
assistance required by ACP to comply with the
requirements of the Government Authorities in an
accurate and timely fashion as required by those
(b) it will retain all documents or records in the
manner required by the Government Authorities;
(c) it will observe all provisions of any Government
(d) it will maintain as confidential the terms of the
Authorisation and these Terms & Conditions;
(e) it has complied with all laws and regulations of
any Government Authorities relating to the nature,
condition, packaging, handling, storage and
carriage of the Goods including all Laws prescribed
by the RSA;
(f) the Goods are packed to withstand ordinary risks
of handling storage and carriage, having regard to
(g) the Goods are not dangerous;
(h) the Goods and their carriage do not contravene
(i) it is the legal owner of the Goods or legally
entitled to authorise their carriage; and
(j) it will notify ACP of any issue or event that may
affect ACP’s ability to adhere to the Standards in the
provision of the Services;
(k) it will comply with all Privacy Laws in relation to
this Agreement, the Goods and the Services at all
times and will notify ACP of any issues or
requirements under such laws in relation to this
Agreement or Services of which the Customer
should be aware;
(l) it shall be liable for and pay to ACP any additional
costs or expenses ACP may incur and for any loss or
damage occasioned either directly or indirectly to
ACP as a result of ACP relying upon the description
and particulars provided by the Customer or by
reason of any illegal, incorrect or insufficient
marking, numbering or addressing of the Goods;
(m) it will comply with all Occupational Health &
Safety Laws in relation to this Agreement, the Goods
and the Services at all times, and will notify ACP of
any issues or requirements under such laws in
relation to this Agreement or the Services of which
the Customer should be aware, or which may affect
ACP’s ability to comply either with the Occupational
Health & Safety Laws or the Standards.
16.2 The Customer acknowledges that a breach or
failure to observe all or any of the warranties in
subclause 16.1 could lead to penalties or damages to
the Customer and also to ACP and the Customer
agrees to provide the indemnity to ACP on account
of such penalties or damages pursuant to clause 17.
17. CUSTOMER INDEMNITIES
17.1 Without limiting the effect of these Terms &
Conditions, the Customer agrees to indemnify and
keep indemnified ACP for:
(a) amounts of Customs Duty, GST and other
payments made to Government Authorities by ACP
on behalf of the Customer;
(b) any penalties payable by ACP (pursuant to a
Court order or pursuant to an Infringement Notice)
due to the Customer:
(i) providing information that is incorrect or
(ii) omitting to provide material information required
to the Government Authorities;
(iii) providing information in a manner which does
not enable ACP to comply with the requirements of
the Government Authorities for reporting in
prescribed periods; and
(iv) failing to provide information or documentation
requested by ACP;
(c) penalties associated with the failure by the
Customer to maintain or provide its documents or
records in the manner and at the time contemplated
by the Government Authorities;
(d) penalties associated with providing misleading
or deceptive information regarding the status of
Goods, whether pursuant to the Trade Practices Act
1974 (Cth) or other legislation;
(e) penalties imposed by any RSA for any breach of
the laws governing the carriage of Goods by road;
(f) damages payable by ACP from the failure of the
Customer to return any container or transport
equipment involved in Carriage in the time required
by the contract between ACP and the supplier or
owner of that container or other transport equipment;
(g) demurrage or other charge for detention or
failure to return items provided by ACP pursuant to
contracts with other parties;
(h) liabilities or costs incurred by ACP on behalf of
the Customer associated with the transport of Goods
including, without limitation, amounts paid to
carriers of goods for the carriage of Goods or
cleaning of containers (whether subcontractors or
otherwise and amounts incurred by ACP in
exercising its rights pursuant to these Terms &
(i) damages payable by ACP arising from or
contributed to by errors or misrepresentations by
(j) losses or damage incurred by ACP due to a
breach by a Customer of any of the warranties in this
(k) all expenses directly or indirectly incurred
arising out of or in connection with the entry of an
officer of any Government Authorities or other
authorised person on the premises of ACP for the
purpose of exercising any powers pursuant to the
requirements of any Government Authorities and/or
inspecting, examining, making copies of, taking
extracts of documents on the premises;
(l) any Customs Duty, GST or other charge assessed
against ACP in relation to the Goods or Services;
(m) any charges levied by Government Authorities
for examination and treatment of the Goods; and
(n) costs or charges incurred by ACP pursuant to
clauses 33, 34 and 35.
17.2 The Customer agrees to pay any amounts
claimed pursuant to the indemnity in subclause 17.1
within seven (7) days of demand by ACP.
17.3 The nature of the indemnity provided pursuant
to subclause 17.1 will include, without limitation, all
penalties, liabilities and damages assessed against
ACP and its officers and employees, together with all
legal costs incurred by ACP (calculated on a solicitor
and own client basis). The indemnity shall continue
in force and effect whether or not the Goods have
been pillaged, stolen, lost, damaged or destroyed
and shall not be affected in any way if such pillaging,
stealing, loss, damage or destruction has occurred or
been brought about wholly or in part by the
negligence or the alleged negligence or any default,
omission, neglect or default or any breach of duty of
obligation of ACP, its servants or agents.
17.4 ACP may execute all or any of its rights pursuant
to clause 15 and/or clause 20 to recover any amounts
owing pursuant to this clause 17.
18. LIBERTIES AND RIGHTS OF ACP
18.1 Unless otherwise agreed in writing, ACP shall be entitled to enter into contracts on behalf of itself or the Customer and without notice to the Customer for: (a) the carriage of Goods by any route, means or person; (b) the carriage of Goods of any description, whether containerised or not, on or under the deck of any vessel; (c) the storage, packing, transhipment, loading, unloading or handling of Goods by any person at any place whether on shore or afloat and for any length of time; (d) the carriage or storage of Goods in containers or with other Goods of whatever nature; and (e) the performance of its own obligations, and to do such acts as ACP reasonably considers may be necessary or incidental to the performance of ACP’s obligations.
18.2 ACP shall be entitled (without incurring any additional liability), but shall be under no obligation, to depart from the Customer’s instructions in any respect if ACP considers there is good reason to do so in the Customer’s interest.
18.3 ACP may at any time comply with the orders or recommendations given by any Authority. The responsibility and liability of ACP in respect of the Goods shall cease on the delivery or other disposition of the Goods in accordance with such orders or recommendations.
18.4 ACP shall be entitled (but under no obligation) at any time and from time to time to inspect the Goods and for this purpose to open or remove any containers.
18.5 If at any time ACP reasonably considers that the carriage of Goods should not be undertaken or continued or only continued after effecting any necessary incidental matters or incurring additional expense or risk, ACP shall be entitled to: (a) abandon the carriage of such cargo or to effect such additional incidental matters and incur such additional expense, as may be reasonably necessary in order to enable the carriage to be effected or further effected; and (b) be reimbursed by the Customer for the cost of all such additional incidental matters and all such additional expense incurred.
18.6 If ACP (or any person whose services ACP makes use of) considers: (a) the performance of ACP’s obligations are likely to be effected by an hindrance, risk, delay, difficulty or disadvantage whatsoever; and (b) the hindrance, risk, delay, difficulty or disadvantage cannot be avoided by reasonable endeavours of ACP or such other person, ACP may (upon giving notice in writing to the Customer or Owner) treat the performance of its obligations as terminated and may, at the Customer’s expense, place the Goods or any part of them at the Customer’s or Owner’s disposal at any place which ACP deems safe and convenient.
18.7 The notice in writing referred to above, in subclause 18.6, is not required where it is not reasonably possible to give such notice.
18.8 Where ACP exercises its rights and obligations under subclause 18.6, responsibility and liability of ACP in respect of the Goods shall thereupon cease absolutely.
18.9 Where ACP (or any person whose services ACP makes use of) is entitled to call upon the Customer or Owner to take delivery of the Goods at a designated time and place and delivery of the Goods, or any part thereof, is not taken by the Customer or Owner at the designated time and place ACP (or such other person) shall be entitled to store the Goods in the open or under cover at the sole risk and expense of the Customer.
19. SECURITY AND CHARGE
The Customer hereby charges all property, both equitable and legal, present or future of the Customer in respect of any monies that may be owing by the Customer to ACP under the terms and conditions or otherwise and hereby authorises the ACP or its solicitors to execute any consent form as its attorney for the purpose of registering a caveat over any real property owned by the Customer at any time or to register this charge over assets of the Customer with the Australian Securities and Investments Commission.
ACP shall not effect insurance on the Goods except upon receipt of express instructions given in writing by the Customer and the Customer’s written declaration as to the value of the Goods. All such insurances effected by ACP are subject to the usual exceptions and conditions of the policies of the insurer or underwriter taking the risk. At the discretion of ACP such insurance may name the Customer or owner as insured. In the event of any dispute in regard to liability under any such insurance policy for any reason whatsoever the Customer or other insured shall have recourse against the insurer or underwriter only and ACP shall have no liability or responsibility in relation to any such insurance policy.
21. STORAGE & TRANSPORT
Subject to express instructions in writing given by the Customer and accepted by ACP in writing (and without limiting the generality of clauses 6 and 7), ACP reserves to itself complete freedom to decide upon the means, route and procedure to be followed in the handling, storage and transportation of the Goods and is entitled and authorised to engage subcontractors to perform all or any of the functions required of ACP upon such terms and conditions as ACP in its absolute discretion may deem appropriate.
22.1 The Customer agrees that the value of the Goods shall not be declared or inserted in a Bill of Lading or a sea carriage document for the purpose of extending a ship or carrier’s liability under the Carriage of Goods by Sea Act 1991 and Regulations 1998 except upon express instructions given by the Customer.
22.2 In the case of carriage by air, no option or declaration of value to increase air-carrier’s liability under Article 22(2) of the First Schedule to the Civil Aviation (Carrier’s Liability) Act 1959 will be made except on express instruction given in writing by the Customer.
22.3 In the case of carriage by land, or any carriage ancillary to the carriage mentioned above and not expressly provided for under any contract within these Terms & Conditions, under convention or under any statute or law, the Customer agrees that the value of the Goods shall not be declared or inserted into a contractual document or as part of the trading terms for the purpose of extending the forwarder or carrier’s liability under any circumstance except upon express conditions agreed to in writing by the carrier or forwarder who expressly elect to waive that right.
22.4 In all other cases where there is a choice of charges by carriers, warehousemen, stevedores or others according to the extent of the liability assumed by the carriers, warehousemen, stevedores or others no declaration of value (where optional) will be made for the purpose of extending liability, and the Goods will be forwarded or dealt with at the Customer’s risk for minimum charges, unless express instructions in writing to the contrary are given by the Customer.
22.5 ACP shall have no obligation to take any action in respect of any Goods that may be recognisable as belonging to the Customer unless it has received suitable instructions relating to such Goods together with all necessary documents. In particular, ACP shall not be obliged to notify the Customer of the existence or whereabouts of the Goods or to examine them or to take any other steps for their identification, protection or preservation or for the preservation of any claim by the Customer or any other party against the carrier, insurer or any third party.
22.6 All freight moved by air is subject to volumetric conversion on the basis of one kilo being the equivalent of six thousand cubic centimetres. Freight moved by other means is subject to volumetric conversion on the basis of relevant industry standards or as modified by the carrier’s standard Terms & Conditions.
23. PERISHABLE, NON-DELLIVERABLE, HAZARDDOUS AND DAMAGED GOODS
23.1 Where the Goods are perishable and are not taken up immediately upon arrival or are insufficiently or incorrectly addressed or marked or otherwise not identifiable, they may be sold or otherwise disposed of with or without notice to the Customer, consignor, owner or consignee of the Goods and payment or tender of the net proceeds of any sale after deduction of all costs, expenses and charges incurred by ACP in effecting such sale or disposal shall be equivalent to delivery.
23.2 Where the Goods are non-perishable and cannot be delivered either because they are insufficiently or incorrectly addressed or marked or otherwise not identifiable or because they are not collected or accepted by the consignee they may be sold or returned at ACP’s option at any time after the expiration of 21 days from a notice in writing sent to the Customer at the address which the Customer gave to ACP on delivery of the Goods. All costs, charges and expenses incurred by ACP and arising in connection with the sale or return of the Goods shall be paid by the Customer and may be deducted from the proceeds of the sale of the Goods. A communication from ACP or its agent to the effect that the Goods cannot be delivered for any reason shall be conclusive evidence of that fact.
23.3 In the event that any sale of Goods pursuant to subclause 23.2 does not provide sufficient proceeds to discharge all liability of the Customer to ACP, the Customer acknowledges that it is not released from the remainder of the liability to ACP merely by sale of the Goods.
24. DESTRUCTION OF DANGEROUS GOODS
In the event that the Goods are found to be dangerous they may be destroyed or otherwise dealt with at the sole discretion of ACP or any other person in whose custody they may be at the relevant time. If such Goods are accepted under arrangements previously made in writing they may nevertheless be destroyed or otherwise dealt with if they become dangerous to other goods or property. The expression “goods likely to cause damage” includes goods likely to harbour or encourage vermin or other pests and all such goods as fall within the definition of hazardous and dangerous goods in the legislation governing carriage by rail in the States and Territories of Australia.
25. RAILWAY DECLARATION
ACP shall be under no obligation to make any declaration to, or to seek any special protection or cover from, the Department of Railways, railways authority or provider of railways in any State or any airline or road transport authority in respect of any Goods falling within the definition of that body: (a) of dangerous or hazardous goods; or (b) of goods liable to be stored in the open, unless written instructions to that effect are given to ACP by the Customer.
26. PILLAGED GOODS If the Goods are landed from any vessel in a damaged or pillaged condition and an examination might be held or other action taken by ACP in respect of thereof no responsibility attaches to ACP for any failure to hold such examination or take such other action unless ACP has been given sufficient notice to enable it to arrange for such examination or for the taking of such other action as the case may be.
27. STORAGE OF GOODS PENDING DELIVERY
Without limiting the effect of clause 21, pending forwarding and delivery, the Goods may be warehoused or otherwise held at any place or places at the sole discretion of ACP at the Customer’s risk and expense.
28. C.O.D. GOODS
ACP may in its absolute discretion refuse instructions to collect on delivery (COD) in cash or otherwise. Where ACP does accept such instructions its only obligation to the Customer is to use reasonable diligence and care in such collection. ACP IS NOT LIABLE FOR ANY LOSS OR DAMAGE ARISING FROM SUCH INSTRUCTIONS OR SUCH COLLECTION WHETHER CAUSED BY NEGLIGENCE OR OTHERWISE.
29. VALUABLE GOODS Unless agreed in writing prior to receipt, ACP will not accept or deal with bullion, coin, precious stone, jewellery, antiques, works of art or other valuable Goods. Should any Customer nevertheless deliver any such Goods to ACP or cause ACP to handle or deal with any such Goods other than in accordance with prior written agreement, ACP shall be under no liability whatsoever for or in connection with such Goods however so arising.
30. LIMITATION OF LIABILITY
30.1 Without limiting the effect of clause17, to the full extent permitted by law, ACP its servants and agents shall not be responsible for loss or damage of any kind whatsoever arising out of the provision of its Services to the Customer (whether caused by negligence or wilful default by ACP its servants or agents) and the Customer agrees to indemnify ACP in respect of any claims made by subcontractors or third parties concerning the provision of Services by ACP and the following matters are expressly covered by this limitation of liability: (a) any liability to pay amounts to Government Authorities (including, without limitation, Customs Duty or GST) that would not have otherwise been payable or any penalties (including penalties imposed directly on ACP, its servants or agents as a result of their reliance on incorrect information provided by the Customer, consignor or consignee of the Goods, or their respective agents whether imposed by Court or Infringement Notice); (b) any liability concerning the making of any statement, forecast, information or giving advice in relation to the liability of the Customer to pay any amounts owing to any Government Authorities; (c) any liability in respect of the loss, misdelivery, deterioration, non-delivery, contamination, evaporation or damage to the Goods or consequential loss arising therefrom however caused; (d) any loss or depreciation of market value attributable to delay in forwarding the Goods or failure to carry out instructions of the Customer; (e) loss, damage, expense or additional cost arising from or in any way connected with marks or brands on, weight, numbers, content, quality, description of the Goods; (f) loss or damage resulting from fire, water, explosion or theft; (g) loss, damage or delay occasioned by examination of the Goods by any of the Government Authorities; (h) loss, damage or delay occasioned by treatment of the Goods by any of the Government Authorities (including without limitation, any fumigation or decontamination or other treatment by AQIS); (i) any costs incurred by ACP on behalf of the Customer to any other person in relation to the carriage of the Goods; and (j) loss, damage or delay occasioned by delay in the carriage of the Goods or handling of the Goods in the course of the carriage of the Goods.
30.2 To the extent that ACP acts as an agent, ACP does not make or purport to make any contract with the Customer for the carriage, storage or handling of the Goods nor for any other physical service in relation to them and acts solely on behalf of the Customer in securing such services by establishing contracts with third parties so that direct contractual relationships are established between the Customer and such third parties.
31. INDEMNITY FROM LIABILITY TO THIRD PARTIES
The Customer undertakes and warrants that neither it, nor any other party that has an interest in the Goods or Services, shall bring any claims against any party that has provided all or any part of the Services (including any subcontractor, principal, employer, employee or agent of ACP) and where any such claims are made by the Customer or any other interested party, the Customer undertakes to indemnify all parties against whom the claims are made (including ACP) against any loss and damage that may be suffered as a result of such claims.
32. CONSEQUENTIAL LOSS
ACP shall not be liable in any event for any special, incidental, or consequential damages, including, but not limited to, loss or profits, anticipated income, utility, interest, or loss of market, whether or not ACP had knowledge that such damage might be incurred.
33. CARRIAGE BY AIR ACP and the Customer acknowledge that Goods moving by airfreight are subject to the applicable international treaties including the Warsaw Convention. The Customer’s recovery of any loss or damage is against the airline carrier and is limited in accordance with these or any other conventions that may be applicable. In the event of any loss or damage suffered by the Customer whilst the Goods are in the possession of the airline carrier, ACP will seek to recover on behalf of the Customer from the principal airline carrier amounts payable by these conventions as they are applicable. The Customer will indemnify, defend and hold ACP harmless against any claims for loss or damage to their Goods incurred whilst they were in the possession of the airline carrier.
34.1 If and to the extent that the provisions of the regulations made to the Carriage of Goods by Sea Act 1991 (as amended) of the Commonwealth of Australia (or any amendments to such regulations) would otherwise be compulsorily applicable to regulate ACP’s responsibility for the Goods during any period prior to loading on or after discharge from the Vessel on which the Goods are to be or have been carried, ACP’s responsibility shall be determined by these Terms & Conditions. If such provisions are found to be invalid such responsibility shall be determined by the provisions of the said Carriage of Goods by Sea Act.
34.2 ACP and the Customer acknowledge that Goods moving by seafreight are subject to the applicable international treaties including the International Convention for the Unification of Certain Rules relating to Bill of Lading signed at Brussels on August 25, 1924 (the Hague Rules), or those rules as amended by the Protocol signed at Brussels on February 23, 1968 (the Hague Visby Rules) and the SDR Protocol (1979). The Customer’s recovery of any loss or damage is against the seafreight carrier and is limited in accordance with these conventions or any other conventions that may be applicable. In the event of any loss or damage suffered by the Customer whilst the Goods are in the possession of the seafreight carrier, ACP will seek to recover on behalf of the Customer from the carrier amounts payable by these conventions as they are applicable. The Customer will indemnify, defend and hold ACP harmless against any claims for loss or damage to their Goods incurred whilst they were in the possession of the seafreight carrier.
35. THIRD PARTY CARRIER
ACP and the Customer acknowledge that Goods moving by airfreight or seafreight may necessary involve a part of transport undertaken by other means in order to comply with the terms of carriage under this or any contract between the parties. Where this is so, and no international treaty is applicable which covers the additional transport, the Customer’s recovery of any loss or damage is against the carrier and is limited in accordance with the convention applicable for the majority of the transport, even where that convention does not envisage liability of the kind of transport concerned. In the event of any loss or damage suffered by the Customer whilst the Goods are in the possession of a third party carrier, ACP will seek to recover on behalf of the Customer from the carrier amounts payable by these conventions as they are applicable. The Customer will indemnify, defend and hold ACP harmless against any claims for loss or damage to their Goods incurred whilst they were in the possession of the third party carrier, where such carriage was necessary in order to comply with the terms of the contract.
36. FORCE MAJEURE
ACP shall not be liable to the Customer for any breach or failure to perform its obligations under these Terms & Conditions or any damage or loss to Goods resulting from one of the following: (a) perils, dangers and accidents of the sea or other navigable waters; (b) act of God; (c) act of war; (d) act of public enemies; (e) arrest or restraint of princes, rulers or people, or seizure under legal process; (f) strikes or lock-outs or stoppage or restraint of labour from whatever cause, whether partial or general; (g) riots and civil commotions; (h) saving or attempting to save life or property at sea; or (i) any other cause arising beyond the reasonable control of ACP, without the actual fault or privity of ACP and without the actual fault or privity of the agents or servants of ACP.
If the occurrence of any event contemplated in clause 36 or as stipulated in subclause 18.6 causes a delay of over five (5) business days in any obligation of ACP, then the provision of Services may be terminated by notice in writing by either party to the other party.
38. ACP LIABILITY
Any claim made against ACP, its servants or subagents is limited to the full extent permitted by law, where that liability has not been expressly excluded or limited by any convention, statute, law or contract. To the extent that the liability of ACP is limited by any convention, statute, law or contract, and that limitation exceeds the limitation of liability pursuant to these Terms & Conditions then the liability pursuant to that convention, statute, law or contract shall apply.
39. NON- EXCLUDABLE RIGHTS
In all cases where these Terms & Conditions, statute, international convention or otherwise do not exclude the liability of ACP, the liability of ACP whatsoever and howsoever caused shall be limited to whichever is the lesser between the value of the Goods the subject of the Agreement at the time the Goods were delivered to ACP or Australian $200.
40. NOTIFICATION OF LIABILITY
Any claim for loss or damage must be notified in writing to ACP within seven (7) days of delivery of the Goods or of the date upon which the Goods should have been delivered. In any event, ACP shall be discharged from all liability whatsoever in connection with the Services and/or the Goods unless proceedings are served within three (3) months from delivery of the Goods (or from when they should have been delivered).
41. INTELLECTUAL PROPERTY
The Customer acknowledges that ACP shall retain all copyright and other intellectual property in any documents or things created by ACP in the course of providing its Services pursuant to these Terms & Conditions.
42. PRIVACY ACT 1988
42.1 The Customer hereby authorises ACP to collect, retain, record, use and disclose consumer and/or commercial information about the Customer, in accordance with the Privacy Act 1988, to persons and/or legal entities who are a solicitor or any other professional consultant engaged by ACP, a debt collector, credit reference organisation and/or any other individual or organisation which maintains credit references and/or default listings.
42.2 The Customer also authorises ACP to make enquiries with respect to the Customer’s consumer and commercial credit worthiness; to exchange information with other credit providers in respect to previous consumer and commercial defaults of the Customer and to notify other credit providers of a consumer and/or commercial default by the Customer.
43. GENERAL MATTERS
43.1 Any notice served by post shall be deemed to have been given on the third day following the day on which it was posted to the address last known to ACP to be the address of the recipient of the notice.
43.2 The defences and limits of liability provided in these Terms & Conditions shall apply in any action against ACP whether founded in contract or in tort or howsoever otherwise founded.
43.3 These Terms and Conditions are governed by the laws of the State of Queensland and all disputes arising between the Customer and ACP will be submitted to the Brisbane Registry of any Court as is competent to hear the matter.