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STANDARD TERMS AND TRADING CONDITIONS AS OF 1ST MAY 2017
THESE CONTRACTUAL TERMS AND CONDITIONS APPLY TO ALL SERVICES PROVIDED FOR ON BEHALF OF CLEAR MY GOODS PTY LTD, ABN 21 614 354 906 (the “Company”)
These Trading Terms and Conditions include provisions that entirely change, reduce or exclude rights that you (the “Customer”) might otherwise have.
DEFINITIONS AND INTERPRETATION
In these Trading Conditions, the following defined terms will have the following defined meanings:
“ABN” means the Australian Business Number of the Customer pursuant to the GST Law;
“Airfreight Convention” means either:
(a) the Convention for the Unification of Certain Rules for International Carriage by Air signed at Montreal on 28 May 1999; or
(b) the Convention for the Unification of Certain Rules relating to International Carriage by Air, signed at Warsaw on 12 October 1929; either unamended or
amended by the Hague Protocol 1955; at Guatemala City 1971, by the additional Protocol No 3 of Montreal 1975 and/or by the additional Protocol No.4 of Montreal 1975; whichever may be applicable;
“AQIS” means the Australian Quarantine Inspection Service (Now DAFF);
“Assets” means all assets, Goods, documents and records of the Customer held by the Company as part of the contractual terms and trading conditions for the appointment of the Company, and include, without limitation, the Goods;
“ATO” means the Australian Taxation Office;
“Authority” means the authority and acknowledgement by which the Customer appointed the Company to act on its behalf on the terms of the Authority and on the terms of these Trading Conditions;
“Authorised Signatory” means the party who signs the Authority on behalf of the Customer;
“Business Day” means any day that is not a Saturday or Sunday
“Carriage” means carriage by 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;
“Carrier” means any party involved in the carriage of Goods whether by airfreight, seafreight or land transport;
“Chain of Responsibility” means any State, Territory or Commonwealth legislation or regulations based on or adapted from the provisions of the National Transport Commission (Road Transport Legislation – Compliance and Enforcement Bill) Regulations 2006 or National Transport Commission (Road Transport Legislation – Compliance and Enforcement Regulations) Regulations 2006 as approved by
each State and Territory Government;
“Company” means DTAL Pty Ltd ABN 98 158 167 787, as holder of Customs Brokers Licence number 00000 and the nominees, agents, subagents
and employees of the Company;
“CIF” means cost , insurance and freight
(a) if there is an Authority, the customer named in the Authority and will include all employees, officers, agents and contractors of the Customer; or
(b) if there is no Authority, any entity that instructs the Company to perform the Services;
“Consequential Loss” means any loss or damage arising from a breach of contract or agreement (including breach of the Service Agreement), tort, or any other basis in law or equity including, but without limitation to, loss of profits,loss of revenue, loss of production, loss or denial of opportunity, loss of access to markets, loss of goodwill,
indirect or remote or unforeseeable loss, loss of business reputation, future reputation or publicity, or any similar losswhich was not contemplated by the parties at the time of entering the Service Agreement;
“Customs” means the Department of Immigration and Border Protection
“Customs Act” means the Customs Act 1901 (as amended), and any succeeding Legislation and any regulations made pursuant to the Customs Act;
“Customs Related Law” has the same meaning as in Section 4B of the Customs Act;
“DAFF” means The Department of Agriculture, Fisheries and Forestry
“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 or may become liable to cause damage to any person or property whatsoever whether prescribed by Laws or otherwise;
“Debts” means all amounts owing by the Customer to the Company on any account whatsoever;
“Depot Licence” has the same meaning as “depot licence” as defined in section 77F of the Customs Act;
“DOTARS” means Dept of Transport and Road safety now Dept of infrastructure and transport.
“Excluded Interest” any mortgage, charge or other encumbrance over real property or personal property (tangible or intangible) that is not a Security Interest, including non-consensual liens and mortgages over real property;
“Fees” means the fees charged by the Company for provision of the Services;
“FOB” means free on board
“Goods” are any goods or items which are the subject of the Services provided by the Company to the Customer under this Service Agreement;
“Government Authorities” means, without limitation, all Government departments and agencies 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 to include, without limitation, Customs, DAFF, the ATO , DOTARS and DEH;
“GST” has the same meaning as under the GST Law and means the Goods and Services Tax imposed under the GST Law;
“GST Law” means the A New Tax System (Goods and Services Tax) Act 1999;
“GST Rate” means the rate of GST under the GST Law;
“Hague Rules” means the International Convention for the Unification of Certain Rules relating to Bills of Lading signed at Brussels on 25 August 1924, or those rules as amended by the Protocol signed at Brussels on 23 February 1968 (the Hague Visby Rules) and the SDR Protocol (1979);
“Incoterms” means Incoterms® 2010 issued by the International Chamber of Commerce;
“Input Tax Credit”, “Supply”, “Taxable Supply” and “Tax Invoice” each have the same meaning as under the GST Law;
“Laws” means any laws, regulations or guidelines of the Commonwealth of Australia, any of the States, Territories or Municipalities of Australia, or of any country from which, through which or into which the Goods are carried and including, without limitation all regulations, ordinances and directions made pursuant to the Laws and any successor Laws;
“Licence” means any Depot Licence, Warehouse Licence or any other licence issued by Customs;
“OHS Laws” means any occupational health and safety legislation, regulations or guidelines, codes of conduct or policies of the Commonwealth of Australia or any of the States, Territories or Municipalities of Australia;
“Parties” means the Company and the Customer;
“PPSA” means the Personal Property Securities Act 2009 (Cth);
“Privacy Laws” means the Privacy Act 1988 (Cth), all associated regulations or guidelines, and any other associated or relevant State or national privacy legislation,
regulations or guidelines;
“Reporting Obligations” means the obligations of the Company 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;
“Related Body Corporate” has the same meaning as under the Corporations Act
“Security Interest” has the same meaning as under the PPSA;
“Service Agreement” means:
(a) these Trading Conditions; (b) the Authority; (c) any customer credit application with the Company; and (d) any fee quotation estimate or agreement, as amended from time to time, regardless of whether the Customer is given notice of any amendment;
“Services” means any performance of work by the Company for the Customer in anyway connected with the Goods including, without limitation:
(a) entering into contracts with Sub-contractors on behalf of the Customer for the clearance of goods.
(b) quoting the ABN as may be required under the GST Law;
(c) providing all necessary information and completing all necessary documentation and reports for the purposes of any Government Authorities; and
“Sub-contractor” means any third party appointed by the Company to assist in the provision of the Services and can include Licensed Customs Brokerages;
“Vessel” means any vessel, vehicle or aircraft used to effect Carriage of the Goods, whether by sea, land or air;
2.1 These Trading Conditions and any collateral agreements made by the Company with the Customer wherever made shall be governed and construed according to the laws of New South Wales and shall be subject to the exclusive jurisdiction of the courts
of New South Wales and those courts which can hear appeals from those courts.
2.2 If these Trading Conditions are held to be subject to the laws of any jurisdiction other than the Commonwealth of Australia and the State of New South Wales then these Trading Conditions shall continue to apply and shall be void only to the extent that they are inconsistent with or repugnant to those laws and no further.
2.3 Subject to clause 25, 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 the Company and notwithstanding that the Services have been provided, the Goods delivered as directed by the Customer or the Authority having expired or been terminated.
2.4 Unless written notification to the contrary is given by the Customer to the Company at or prior to entering into these Trading Conditions, the Customer expressly warrants and represents that all or any Services to be supplied by the Company or by its appointed Sub-contractor and acquired by the Customer pursuant to this Service Agreement are so supplied and acquired for the purposes of a business, trade, profession or occupation carried on or engaged in by the Customer.
2.5 In the interpretation of these Trading Conditions the singular includes the plural and vice versa, and words importing corporations mean and include natural persons and vice versa.
2.6 No agent or employee of the Company has the authority to waive or vary these Trading Conditions unless the Company approves such waiver or variation in writing. Any forbearance by the Company in enforcing the Trading Conditions does not constitute a waiver. If the Company waives a breach of a Trading Condition, the waiver doers not operate as a waiver of another breach of the same or any other Trading Condition or as a continuing waiver.
2.7 Where any provision (or part thereof) of these Trading Conditions is held to be illegal or unenforceable, it may be severed and shall in no way affect or prejudice the enforceability of any other term or condition herein.
2.8 Where there is an inconsistency between the terms and conditions of the Service Agreement, the relevant documents shall be construed in the following descending order of priority:
(a) these Trading Conditions;
(b) the Authority;
(c) any customer credit application;
(d) any fee quotation estimate or agreement
2.9 Reference to any Laws or to any section or provision of any Laws includes any statutory modifications, reenactments, substitutions or replacements thereof and all Laws issued thereunder.
2.10 Reference to any Convention or any Article of any Convention includes any modifications, substitutions or replacements thereof.
2.11 References to clauses are references to clauses in these Trading Conditions.
2.12 Headings have no effect on interpretation of the Trading Conditions.
2.13 These Trading Conditions do not affect any rights the Customer has under the Competition and Consumer Act.
3. Nature of Services
3.1 The Company arranges and organises for the provision of customs brokerage services for the Customer by independent licensed Customs Brokers. All Services provided by the Company are governed solely by these Trading 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 Trading Conditions. The Company is not a common carrier and will accept no liability as such.
The Customer agrees that it has received the Trading Conditions, understands the Trading Conditions and by either signing the Authority or instructing the Company to perform the Services, the Customer will be bound by the Trading Conditions.
5. Communications with the Company
5.1 Wherever it is necessary, for the purpose of these Trading Conditions or any other purpose whatsoever, for instructions to be given to the Company, such instructions will be valid only if given in writing, acknowledged by the Company in writing and given in sufficient time in all the circumstances for the Company reasonably to be able to adopt the instructions. Standing or general instructions, or instructions given late, even if received by the Company without comment, shall not be binding upon the Company. If the Company 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 the Company to adopt late instructions will constitute an acceptance by the Company or affect the validity of those instructions.
6.1 The Company 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 the Company in writing and acknowledged by the Company in writing in sufficient time before the performance of any service to
reasonably allow the Company to adopt the manner of performing
the service required by the special instructions
6.2 Subject to, and in accordance with, these Trading Conditions, the Company agrees and the Customer hereby employs and authorises the Company 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 performance of all or any part of the Services pursuant to or ancillary to these Trading Conditions. Any such contract may be made upon the terms of contract used by the Sub-contractor with whom the Company may contract for the Services and may be made upon the terms and subject to the
conditions of any special contract which the Subcontractor may in any particular case require, including in every case any term that the Sub-contractor may employ any person, firm or company for
performance of the Services so contracted for.
6.3 Any term in these Trading Conditions which limits the Company’s liability will also extend and apply to any Sub-contractor, agent or nominee. For the purpose of this subclause 6.3, the Company is deemed to be acting as agent and Sub-contractors and each of those persons shall be deemed to be a party to these Trading Conditions.
1 The Customer undertakes that no claim or allegation will be made, whether by the Customer or any other person, against the Company’s agents, employees or Subcontractors and if such claim
or allegation is made for the consequence thereof. It is agreed thatthis release and indemnity operate irrespective of how the claim or allegation arises including negligence or out of events which may
constitute a fundamental breach of contract or a breach of a fundamental term of a contract.
7.1 The Company 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.
7.2 Quotations as to Fees and other charges are given on the basis of immediate acceptance and subject to the right of withdrawal. If any changes occur in the statutory fees or any other charges applicable to the
7.3 This clause applies if the Company is or may become liable to pay GST in relation to any supply under these Trading Conditions.
(a) Unless otherwise stated, all charges quoted are exclusive of the GST imposed under the GST Law.
(b) The Customer shall be responsible for payment of any GST liability in respect of the services as provided by the Company or by third parties or Sub-contractors which shall be payable at the same time as the GST-exclusive consideration.
(c) The Customer must also pay GST on the Taxable Supply to the Company, calculated by multiplying the GST exclusive consideration by the GST Rate.
(d) 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.
(e) The Company agrees to provide the Customer with a Tax Invoice to enable the Customer to claim Input Tax Credit.
(f) If the Customer defaults in the payment on the due date of any amount payable under subclause 7.4(b) then without prejudice to any other remedies of the Company and upon demand by the Company, the Customer shall pay to the Company an amount equal to the amount of any damages or interest or additional GST that may become payable by the Company due to the default of the Customer.
7.5 All amounts unless agreed are due to the Company in Australian dollars.
7.6 The Company is entitled to charge a credit card processing fee equal to that charged by the Companys credit card merchant provider and/or a currency conversion premium when converting receivables into Australian Currency
7.7 The Customer agrees that the Fees will be paid prior to the customs entry being lodged and the Goods released for delivery within the agreed payment terms.
7.8 Payment is to be made by credit card, or by other means as agreed.
7.9 The Company 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 the Company.
7.10 The Service commences immediately upon receipt of the customers clearance request, any fees paid by the customer at the time of lodgement via the Company website are non-refundable, regardless of whether or not the customer wishes to proceed with the customs clearance services requested, or if the lodgement was made in error or otherwise.
IN AUSTRALIA, OUR GOODS AND SERVICES COME WITH GUARANTEES THAT CANNOT BE EXCLUDED UNDER THE AUSTRALIAN CONSUMER LAW. NOTHING IN THESE TERMS AND CONDITIONS PURPORTS TO MODIFY OR EXCLUDE THE CONDITIONS, WARRANTIES AND UNDERTAKINGS, AND OTHER LEGAL RIGHTS, UNDER THE AUSTRALIAN COMPETITION AND CONSUMER ACT AND OTHER LAWS. ANY AND ALL OTHER WARRANTIES OR CONDITIONS WHICH ARE NOT GUARANTEED BY THE AUSTRALIAN CONSUMER LAW OR THE COMPETITION AND CONSUMER REGULATION 2010 ARE EXPRESSLY EXCLUDED WHERE PERMITTED, INCLUDING LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES CAUSED BY BREACH OF ANY EXPRESS OR IMPLIED WARRANTY OR CONDITION.
8.1 The Customer (on behalf of itself, the consignor and the consignee) warrants to the Company that:
(a) It is either the owner of the Goods, or the authorised agent of the owner of the Goods with authority to bind the owner to act or otherwise have authority to arrange the Services under the
(b) it will provide all documents, information and assistance required by the Company to comply with the requirements of the Government Authorities in an accurate and timely fashion as
required by those Government Authorities;
(c) it will retain all documents or records in the manner required by the Government Authorities;
(d) it will observe all requirements of any Government Authorities;
(e) it will maintain as confidential the terms of the Authority and these Trading Conditions;
(f) 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;
1 The Customer acknowledges that a breach or failure to observe all or any of the warranties in subclause 8.1 could lead to penalties or damages to the Customer and also to the Company and
the Customer agrees to provide the indemnity to the Company on account of such penalties or damages pursuant to clause 9.
9.1 Without limiting the effect of these Trading Conditions, the
Customer agrees to indemnify and keep indemnified the
(a) any loss or damage directly or indirectly caused by the Goods or by breach of these Trading Conditions by the Customer;
(b) amounts of customs duty, GST and other payments made to Government Authorities by the Company on behalf of the Customer;
(c) any penalties payable by the Company (whether pursuant to a court order or pursuant to an Infringement Notice) due to the
(1) providing information that is incorrect or misleading;
(2) omitting to provide material information required to the Government Authorities;
(3) providing information in a manner which does not enable the Company to comply with the requirements of the Government Authorities for reporting in prescribed periods; and/or
(4) failing to provide information or documentation requested by the Company;
(d) 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;
(e) 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;
(f) penalties imposed by any RSA for any breach of the Laws governing to the Carriage of goods by road;
(g) damages payable by the Company from the failure of the Customer to return any container or transport equipment involved in Carriage in the time required by the contract between the Company and the supplier or owner of that container or other transport equipment;
(h) demurrage or other charge for detention or failure to return items provided by the Company pursuant to contracts with other parties;
(i) liabilities or costs incurred by the Company on behalf of the Customer associated with the Services including, without limitation, amounts paid to carriers of goods for the Carriage of Goods or cleaning of/repairing of containers (whether Sub-Contractors or otherwise and amounts incurred by the Company in exercising its rights pursuant to these Trading Conditions);
(j) damages payable by the Company arising from or contributed to by errors or misrepresentations by the Customer;
(k) losses or damage incurred by the Company due to a breach by the Customer of any of the warranties in subclause 8.1;
(l) 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 the Company 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 to the extent that the exercise of the powers is related to the Services;
(m) any customs duty, GST or other charge assessed against the
Company in relation to the Goods or Services;
(n) any charges levied by Government Authorities for examination and treatment of the Goods;
(o) any costs or charges incurred by the Company pursuant to subclause 20.4, 20.5 and 20.6; and
(p) any costs or charges incurred in recovering any amounts payable to the Company (including, without limitation, costs of legal proceedings).
9.2 The Customer agrees to pay any amounts claimed pursuant to
the indemnity in subclause 9.1 within 7 days of demand by the
9.3 The nature of the indemnity provided pursuant to subclause 9.1 will include, without limitation, all penalties, liabilities, all losses (including indirect and Consequential Loss) and damages assessed against the Company and its officers and employees, together with all legal costs incurred by the Company (calculated on a solicitor/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 allege negligence or any default, omission, neglect or default or any breach of duty of obligation of the Company, its servants or agents.
9.4 The Company may execute all or any of its rights pursuant to clause 7 to recover any amounts owing pursuant to this clause 9.
The Customer acknowledges that the Company shall retain all copyright and other intellectual property in any documents or things created by the Company in the course of provide services.