customs sea freight air freight

terms & conditions

 

1. DEFINITIONS

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

Inspection Service;

1.5 “Assets” mean all assets, goods, documents and

records of the Customer held by QCB as part of the

contractual terms and Terms & Conditions for the

appointment of QCB, and include, without limitation,

the Goods;

1.6 “ATO” means the Australian Taxation Office;

1.7 “Authorisation” means the appointment and

authorisation of QCB 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 “QCB” means Barratt & Wallace Pty Ltd as

trustee for Barratt & Wallace Trust ABN 97 136 198

795 trading as Queensland Customs Brokers 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 QCB on any account whatsoever;

1.18 “Fees” means the fees charged by QCB for

provision of the Services;

1.19 “Goods” are any goods or items which are the

subject of the Services provided by QCB 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

GST Law;

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

Authorities;

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 QCB 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

standards;

1.32 “Subcontractor” means any third party

appointed by QCB to assist in the provision of the

Services;

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 QCB 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. INTERPRETATION

 

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 QCB and

notwithstanding that the Services have been

provided, the Goods delivered as directed by the

Customer or the agreement having expired or been

terminated.

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 QCB or any Customer of

QCB has the authority to waive, modify, vary or

amend these Terms & Conditions unless QCB

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

Customs Act.

2.8 Subject to subclause 2.9 all services of QCB

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

QCB and bears the title of or includes the words, “bill

of lading” (whether or not negotiable), or sea or air

“waybill” and provides that QCB 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 QCB 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 QCB 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 QCB carries on business as a licensed Customs

Broker and forwarding agent. All Services provided

by QCB 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.

QCB is not a common carrier and will accept no

liability as such. QCB may refuse at its sole and

absolute discretion to accept any Goods for carriage

without assigning any reason.

3.3 QCB 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

that kind.

 

4. COMMUNICATIONS WITH QCB

 

Wherever it is necessary, for the purpose of these

Terms & Conditions or any other purpose whatever,

for instructions to be given to QCB, such instructions

will be valid only if given in writing, acknowledged

by QCB in writing and given in sufficient time in all

the circumstances for QCB reasonably to be able to

adopt the instructions. Standing or general

instructions, or instructions given late, even if

received by QCB without comment, shall not be

binding upon QCB. If QCB 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 QCB to adopt late

instructions will constitute an acceptance by QCB or

affect the validity of those instructions.

 

5. DELIVERY BY POST

 

Notwithstanding any prior dealings between QCB

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 QCB through the post shall be

deemed not to have been received by QCB unless

and until they are actually delivered to QCB at its

office address or placed in QCB’s post office box, if

so addressed.

 

6. ABILITY TO APPOINT AGENTS,

SUBCONTRACTORS & THIRD PARTIES

 

Subject to and in accordance with these Terms &

Conditions, the Customer hereby employs and

authorises QCB 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

 

QCB 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 QCB in writing and acknowledged by

QCB in writing in sufficient time before the

performance of any service to reasonably allow QCB

to adopt the manner of performing the service

required by the special instructions.

 

8. DISBURSMENTS

 

QCB 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

QCB 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 QCB OR ITS SERVANTS OR

AGENTS OR HOWEVER CAUSED.

 

9. PAYMENT, RECOVERY OF FEES

 

9.1 QCB 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 QCB

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).

QCB may charge by weight, measurement or value

and may at any time reweigh, remeasure or revalue

the Goods (or request same) and charge additional

fees accordingly.

9.2 QCB 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 QCB in Australia are payable

in Australian dollars. QCB is entitled to charge a

currency conversion premium when converting

receivables into Australian currency.

9.4 The Customer shall pay to QCB in cash, or as

agreed, all sums immediately when due, this being

on or before the payment date stipulated on QCB’s

tax invoice, without deduction or deferment on

account of any claim, counterclaim or set-off.

 

10. QUOTATIONS

 

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 QCB. 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.

 

11. GST

 

If QCB 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 QCB 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 QCB, 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

payable;

11.5 QCB agrees to provide the Customer with a Tax

Invoice to enable the Customer to claim Input Tax

Credit; and

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

QCB and upon demand by QCB, the Customer shall

pay to QCB 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 QCB

due to the default of the Customer.

 

12. INTEREST

 

QCB 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

Authority.

 

13. DAMAGES

 

The Customer must pay to QCB any costs, expenses

or losses incurred by QCB as a result of the

Customer’s failure to pay to the QCB all sums

outstanding as owed by the Customer to QCB

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.

 

14. OFFSET

 

QCB 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

with QCB.

 

15. LIEN

 

QCB, 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 QCB 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 QCB that:

(a) it will provide all documents, information and

assistance required by Q C B to comply with the

requirements of the Government Authorities in an

accurate and timely fashion as required by those

Government Authorities;

(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

Authorities;

(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

their nature;

(g) the Goods are not dangerous;

(h) the Goods and their carriage do not contravene

any Laws;

(i) it is the legal owner of the Goods or legally

entitled to authorise their carriage; and

(j) it will notify QCB of any issue or event that may

affect QCB’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 QCB 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 QCB any additional

costs or expenses QCB may incur and for any loss or

damage occasioned either directly or indirectly to

QCB as a result of QCB 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;

and

(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 QCB 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

QCB’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 QCB and the Customer

agrees to provide the indemnity to QCB 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 QCB for:

(a) amounts of Customs Duty, GST and other

payments made to Government Authorities by QCB

on behalf of the Customer;

(b) any penalties payable by QCB (pursuant to a

Court order or pursuant to an Infringement Notice)

due to the Customer:

(i) providing information that is incorrect or

misleading;

(ii) omitting to provide material information required

to the Government Authorities;

(iii) providing information in a manner which does

not enable QCB to comply with the requirements of

the Government Authorities for reporting in

prescribed periods; and

(iv) failing to provide information or documentation

requested by QCB;

(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 QCB from the failure of the

Customer to return any container or transport

equipment involved in Carriage in the time required

by the contract between QCB 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 QCB pursuant to

contracts with other parties;

(h) liabilities or costs incurred by QCB 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 QCB in

exercising its rights pursuant to these Terms &

Conditions);

(i) damages payable by QCB arising from or

contributed to by errors or misrepresentations by

the Customer;

(j) losses or damage incurred by QCB due to a

breach by a Customer of any of the warranties in this

subclause 17.1;

(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 QCB 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 QCB 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 QCB 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 QCB.

17.3 The nature of the indemnity provided pursuant

to subclause 17.1 will include, without limitation, all

penalties, liabilities and damages assessed against

QCB and its officers and employees, together with all

legal costs incurred by QCB (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 QCB, its servants or agents.

17.4 QCB 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 QCB

 

18.1 Unless otherwise agreed in writing, QCB 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 QCB reasonably considers may be

necessary or incidental to the performance of QCB’s

obligations.

18.2 QCB 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 QCB considers there is good reason to do

so in the Customer’s interest.

18.3 QCB may at any time comply with the orders or

recommendations given by any Authority. The

responsibility and liability of QCB 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 QCB 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 QCB 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, QCB 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 QCB (or any person whose services QCB

makes use of) considers:

(a) the performance of QCB’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 QCB or such other person, QCB 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

QCB 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 QCB exercises its rights and obligations

under subclause 18.6, responsibility and liability of

QCB in respect of the Goods shall thereupon cease

absolutely.

18.9 Where QCB (or any person whose services QCB

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 QCB (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 QCB under the terms and

conditions or otherwise and hereby authorises the

QCB 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.

 

20. INSURANCES

 

QCB 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 QCB are subject to the usual

exceptions and conditions of the policies of the

insurer or underwriter taking the risk. At the

discretion of QCB 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 QCB 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 QCB in writing (and

without limiting the generality of clauses 6 and 7),

QCB 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 QCB upon such terms and conditions as

QCB in its absolute discretion may deem appropriate.

 

22. CARRIAGE

 

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 QCB 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, QCB

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 QCB 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 QCB’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 QCB on delivery of the Goods. All costs,

charges and expenses incurred by QCB 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 QCB 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 QCB, the

Customer acknowledges that it is not released from

the remainder of the liability to QCB 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 QCB 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

 

QCB 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 QCB 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 QCB in

respect of thereof no responsibility attaches to QCB

for any failure to hold such examination or take such

other action unless QCB 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 QCB at the Customer’s risk

and expense.

 

28. C.O.D. GOODS

 

QCB may in its absolute discretion refuse instructions

to collect on delivery (COD) in cash or otherwise.

Where QCB does accept such instructions its only

obligation to the Customer is to use reasonable

diligence and care in such collection. QCB 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, QCB 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 QCB or cause QCB to handle or

deal with any such Goods other than in accordance

with prior written agreement, QCB 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, QCB 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 QCB its servants or

agents) and the Customer agrees to indemnify QCB

in respect of any claims made by subcontractors or

third parties concerning the provision of Services by

QCB 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 QCB, 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 QCB 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 QCB acts as an agent, QCB

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 QCB) 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 QCB) against any loss and damage

that may be suffered as a result of such claims.

 

32. CONSEQUENTIAL LOSS

 

QCB 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 QCB

had knowledge that such damage might be incurred.

 

33. CARRIAGE BY AIR

 

QCB 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, QCB 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 QCB harmless

against any claims for loss or damage to their Goods

incurred whilst they were in the possession of the

airline carrier.

 

34. SEAFREIGHT

 

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 QCB’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, QCB’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 QCB 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, QCB 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 QCB

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

 

QCB 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, QCB 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 QCB

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

 

QCB 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 QCB, without the actual fault or privity of

QCB and without the actual fault or privity of the

agents or servants of QCB.

 

37. TERMINATION

 

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 QCB, then the provision of Services may be

terminated by notice in writing by either party to the

other party.

 

38. QCB LIABILITY

 

Any claim made against QCB, 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 QCB 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 QCB, the liability of QCB 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 QCB or Australian $200.

 

40. NOTIFICATION OF LIABILITY

 

Any claim for loss or damage must be notified in

writing to QCB within seven (7) days of delivery of

the Goods or of the date upon which the Goods

should have been delivered. In any event, QCB 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 QCB shall retain all

copyright and other intellectual property in any

documents or things created by QCB in the course of

providing its Services pursuant to these Terms &

Conditions.

 

 

 

42. PRIVACY ACT 1988

 

42.1 The Customer hereby authorises QCB 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 QCB, 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 QCB 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.

42.3 The Customer’s personal information is

collected, used and disclosed by QCB in

accordance with QCB’s Privacy Policy Statement

published on QCB’s website.

 

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

QCB 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 QCB 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 QCB will be

submitted to the Brisbane Registry of any Court as is

competent to hear the matter.