EIZ PTY LTD
Superfreight
FREIGHT SERVICE AGREEMENT
Contents
1 Definitions and Interpretation 4
2 Provision of Services 9
3 Fees and Charges 9
4 Invoicing and Payment 9
5 Term 11
6 Contracts with Third Parties 11
7 Warranties by the Customer 11
8 Exclusion and Limitation of Liability 12
9 Quotations 14
10 Routes, Procedures and Method 14
11 Packaging and Inspection 15
12 Lien 15
13 Registration / Personal Properties Security Act 16
14 Dangerous Goods 16
15 Valuables 17
16 Delivery / Completion 18
17 Sale and Disposal of Goods 19
18 GST 19
19 Regulation Compliance 20
20 Trade Practices 20
21 Confidentiality 21
22 Insurance and Carrier Claims 23
23 Termination 24
24 Notices 25
25 Not a Common Carrier 26
26 Entire Agreement and Amendment 27
27 Assignment 27
28 Inconsistency and Priority 27
29 Severance and Waiver 27
30 Law and Jurisdiction 28
31 Counterparts and Electronic Exchange 28
32 Further assurances 28
33 Costs 28
Execution 29
Schedule 1 30
1 Fees and Charges 30
2 Services 30
3 Standards and Duties 30
Date
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Company |
EIZ Pty Ltd (ACN 623 320 258) Address: Level 1, 13 Corporate Drive, Heatherton VIC 3202 Email: Click or tap here to enter text. (the Company) |
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Customer |
[INSERTED automatically according to the user info you provided for creating a SuperFreight account or using the SuperFreight services] Address: INSERTED automatically Email: INSERTED automatically (the Customer) PLEASE BE ADVISED THAT UPON CREATING A SUPERFREIGHT ACCOUNT OR USING THE SUPERFREIGHT SERVICES, YOU ARE CONSIDERED THE CUSTOMER IN AGREEMENT WITH EIZ PTY LTD. IF YOU DO NOT AGREE TO THIS AGREEMENT, PLEASE DO NOT REGISTER A SUPERFREIGHT ACCOUNT OR USE THE SUPERFREIGHT SERVICES. |
A. The Company agrees to provide the Services and the Customer agrees to pay for the Services in accordance with clauses 2 and 3 of this agreement.
B. The parties agree to accept certain other rights and obligations on the terms of this agreement.
Operative provisions
Definitions
1.1. The following definitions apply in this agreement unless the context requires otherwise:
Australian Consumer Law means the Australian Consumer Law set out in Schedule 2 of the Competitions and Consumer Act 2010 (Cth) and as amended from time to time.
Authorised Third Party Disclosees means a person not party to this agreement to whom a Disclosee, having received authorisation in writing from the Discloser, has disclosed Confidential Information.
Business Day means a day (other than a Saturday or Sunday) on which banks are open for business generally in the State of Victoria.
Carriage by Air Convention includes the Convention for the Unification of Certain Rules for International Carriage by Air (or Montreal Convention), and the Warsaw Convention.
Carrier means a carrier with whom the Company contracts to provide, deliver, or arrange transport and freight services in respect of the Goods, including any ancillary services such as the collection and unloading, and available for selection by the Customer via the Company’s website.
Claim means any claim, complaint, demand, proceeding, suit, litigation, action, cause of action or other legal recourse (whether in contract, tort, under statute or otherwise).
SuperFreight Services means the web-based portal on the SuperFreight site (https://superfreight.com.au/)or its services connected to other EIZ products.
Commencement Date means the date when the Customer creates a SuperFreight account or begins to use the SuperFreight Services.
SuperFreight Account refers to the user account registered by the Customer for the SuperFreight Services.
Confidential Information means all information relating to a party, any customer, clients, suppliers, distributors or joint venture partners, of the party and/or any of the business or financial affairs of any of them, including:
(a) any information that is specifically designated by any of them as confidential;
(b) any information which, by its nature, may reasonably be regarded as confidential;
(c) any information relating to any:
(i) agreements, arrangements or terms of trade with any existing or prospective customers, clients, suppliers, distributors or joint venture partners or other contractual counterparties;
(ii) customers, clients, suppliers, distributors, joint venture partners, employees, technologies, products, services, proposals, market opportunities, business or product development plans, pricing, financial position or performance, capabilities, capacities, operations or processes; or
(iii) Intellectual Property Rights,
of any of them; and
(d) any note, calculation, conclusion, summary or other material derived or produced partly or wholly from any such information.
Contract Term means the period for which this agreement is effective, as provided by clauses 5.1 and 5.2.
Dangerous Goods means:
(a) any Goods that satisfy the Dangerous Goods classification criteria set out, or referred to, in Part 2 of the Australian Code for the Transport of Dangerous Goods by Road & Rail for determining whether goods are dangerous goods;
(b) any Goods determined to be dangerous goods under regulation 30(1)(a) of the Dangerous Goods (Transport by Road or Rail) Regulations 2018 (Vic);
(c) any Goods classified as dangerous goods under the International Maritime Dangerous Goods Code; or
(d) any Goods that are or may become noxious, dangerous, flammable or damaging or that may harbour or encourage vermin or other pests, or that are or may become liable to damage any property whatsoever.
Default Rate means 1.5% per annum.
Disclosee means the party to whom Confidential Information has been disclosed by the Discloser.
Discloser means the party who has disclosed Confidential Information to a Disclosee.
Fees and Charges means the fees due from the Customer to the Company in accordance with Schedule 1.
Authorized Credit Card refers to the credit card authorized by the Customer to pay for the Fees and Charges.
Force Majeure Event means any act, event or cause which is beyond the reasonable control of a party (other than lack of or unavailability of funds) including:
(a) an act of God, accident of navigation, war (whether declared or not), sabotage, insurrection, national emergency, martial law, fire, lightning, flood, earthquake, or other severe adverse weather conditions, explosion, power shortage, strike or other labour difficulty, pandemic or epidemic, quarantine, radiation or radioactive contamination;
(b) action or inaction of any government, Government Authority or court, including appropriation, intervention, direction or injunction, by legislation, regulation or otherwise;
(c) breakdown of plant, machinery or equipment or shortages of labour, transportation, fuel, power, or materials, not preventable by the exercise of due diligence by the Parties, its servants, agents or sub-contractors;
(d) transportation disasters, washaways, derailment and the like; and
(e) any other cause which despite the exercise of foresight or due diligence, the parties are unable to prevent or overcome.
Goods means the cargo or goods that the Customer wishes to ship or send via or using the Services.
Government Authority includes the public authorities of any Australian government, or any other foreign government.
GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Input Tax Credit has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth).
Insolvency Event means, in respect of a party:
(a) where the party is an individual, that party commits an act of bankruptcy or is declared bankrupt or insolvent or that party’s estate otherwise becomes liable to be dealt with under any law relating to bankruptcy or insolvency;
(b) where the party is a company, a resolution is passed or court order made for the winding up of that party or an administrator is appointed to that party pursuant to any relevant law;
(c) a receiver or manager or receiver and manager is appointed to the assets or undertaking of the party or any part thereof; or
(d) the party is otherwise unable to pay its debts as and when they fall due.
Letter of Instruction means a document which provides shipping instructions to a Carrier or freight forwarder to ensure accurate and correct movement of the products across borders.
Loss means any loss, damage, debt, cost, charge, expense, fee, fine, outgoing, penalty, diminution in value, deficiency or other liability of any kind or character (including legal and other professional fees and expenses on a full indemnity basis) that a party pays, suffers or incurs or is liable for, including all:
(a) liabilities on account of Tax;
(b) interest and other amounts payable to third parties;
(c) legal and other professional fees and expenses (on a full indemnity basis) and other costs incurred in connection with investigating, defending or settling any Claim, whether or not resulting in any liability; and
(d) all amounts paid in settlement of any Claim.
PPSA means the Personal Property Securities Act 2009 (Cth) and its regulations, any statutory instruments or binding determinations made under any of them and consolidations, amendments, re-enactments or replacements of any of them.
Representatives means, in respect of a person, the employees, officers, consultants, agents and professional advisers of that person.
Services means the services identified in the table of services including freight and storage in Schedule 1.
Subcontractor means any third party whom the Company engages in order to perform its obligations under this agreement, and includes any Carriers with whom the Company contracts to provide the Services.
Tax or Taxation means:
(a) any tax, levy, impost, deduction, charge, rate, compulsory loan, withholding or duty by whatever name called, levied, imposed or assessed under the Tax Acts or any other statute, ordinance or law by any Government Authority (including profits tax, property tax, interest tax, income tax, tax related to capital gains, tax related to the franking of dividends, bank account debits tax, fringe benefits tax, sales tax, payroll tax, superannuation guarantee charge, group or Pay as You Go withholding tax and land tax);
(b) unless the context otherwise requires, Stamp Duty and GST; and
(c) any interest, penalty, charge, fine or fee or other amount of any kind assessed, charged or imposed on or in respect of the above.
Valuables means any Goods which have a value in excess of $3,000 Australian Dollars or otherwise as determined by the Company and notified to the Customer from time to time.
Interpretation
1.2. The following rules of interpretation apply in this agreement unless the context requires otherwise:
(a) headings in this agreement are for convenience only and do not affect its interpretation or construction;
(b) no rule of construction applies to the disadvantage of a party because this agreement is prepared by (or on behalf of) that party;
(c) where any word or phrase is defined, any other part of speech or other grammatical form of that word or phrase has a cognate meaning;
(d) a reference to a document (including this agreement) is a reference to that document (including any schedules and annexures) as amended, consolidated, supplemented, novated or replaced;
(e) references to recitals, clauses, subclauses, paragraphs, annexures or schedules are references to recitals, clauses, subclauses, paragraphs, annexures and schedules of or to this agreement;
(f) in each schedule to this agreement, a reference to a paragraph is a reference to a paragraph in that schedule;
(g) a reference to any statute, proclamation, rule, code, regulation or ordinance includes any amendment, consolidation, modification, re-enactment or reprint of it or any statute, proclamation, rule, code, regulation or ordinance replacing it;
(h) an expression importing a natural person includes any individual, corporation or other body corporate, partnership, trust or association and any Government Authority and that person’s personal representatives, successors, permitted assigns, substitutes, executors and administrators;
(i) a reference to writing includes any communication sent by post, facsimile or email;
(j) a reference to time refers to time in Melbourne, Victoria, and time is of the essence;
(k) all monetary amounts are in Australian currency;
(l) a reference to a “liability” includes a present, prospective, future or contingent liability;
(m) the word “month” means calendar month and the word “year” means 12 calendar months;
(n) the meaning of general words is not limited by specific examples introduced by “include”, “includes”, “including”, “for example”, “in particular”, “such as” or similar expressions;
(o) a reference to a “party” is a reference to a party to this agreement and a reference to a “third party” is a reference to a person that is not a party to this agreement;
(p) a reference to any thing is a reference to the whole and each part of it;
(q) a reference to a group of persons is a reference to all of them collectively and to each of them individually;
(r) words in the singular include the plural and vice versa; and
(s) a reference to one gender includes a reference to the other genders.
2.1. The Company must, in providing the Services, comply with the standards and duties set out in Schedule 1.
2.2. The Company shall not sub-contract or engage third parties for the performance of all or part of the Services without the prior written consent of the Customer (which shall not be unreasonably withheld), except where the Customer has selected or nominated a Subcontractor (such as a Carrier) via the Company’s website, the Customer shall be deemed to have given consent to sub-contract or engage a third party. The Company shall remain fully responsible for the performance of all Services provided under this agreement and for all costs incurred and payable to any Subcontractors.
Fees and Charges
3.1. In consideration for the provision of the Services by the Company, the Customer shall pay the Company the Fees and Charges calculated in accordance with Schedule 1.
Reimbursement of Expenses
3.2. The Customer shall pay all reasonable expenses properly and necessarily incurred by the Company in the course of providing the Services, provided that:
(a) the Company:
i. obtains the Customer’s written consent before incurring the expenses;
ii. provides the Customer with acceptable documentation for the expenses incurred; and
(b) the Customer shall not be required to reimburse the Company for any amount of GST that the Company has paid, or is liable to pay, in relation to any supply acquired by the Company from any third party if the Company has received, or is entitled to receive, an Input Tax Credit for that GST.
Method of Payment
4.1. The Customer agrees to make payments for any service in connection with this agreement using one of the following methods:
a) Credit card payments: The Customer authorizes the Company to charge the Authorized Credit Card on their behalf, along with a transaction summary.
b) Top-up payments: The Customer may add funds to their SuperFreight Account and authorize the Company to charge their top-up account balance for shipping services on a pay-as-you-go basis.
The Company shall provide an estimated price for reference prior to the transaction. This estimate is calculated based on the Customer’s declarations, including but not limited to the weight and dimensions of the goods intended for shipment, as well as the pricing displayed on the Company’s website and/or platform.
The Customer acknowledges that the estimated price is provisional and subject to change. The final price may differ from the estimate due to various factors, including but not limited to: 1) reweighing and remeasurement of goods; 2) inaccuracies in the Customer's declarations; and 3) updates to the reference pricing on the Company’s website and/or platform.
The Customer authorizes the Company to debit their SuperFreight Account for any additional charges incurred as a result of the factors outlined above. The Company will provide the Customer with a transaction summary detailing any such additional charges.
The Customer agrees to provide accurate and complete information regarding the goods to be shipped. The Customer shall be liable for any discrepancies and associated costs, including without limitation, the suspended or terminated use of their SuperFreight Account or the SuperFreight Services.
c) Invoiced payments: The Customer should make an electronic fund transfer into the account nominated by the Company, following the invoice issued by the Company. A credit limit will be applicable for the Customer upon completing the Business Credit Application, as outlined in clause 4.2 c) below.
Timing of Payments
4.2. The Customer must pay the Company all Fees and Charges as properly notified or invoiced pursuant to clause 3:
a) For credit card payments, all Fees and Charges must be made in full at the time of the transaction to ensure continued access to services. The customer must ensure that there is a sufficient balance available on the credit card at the time of the transaction.
b) For top-up payments, all Fees and Charges must be made in full at the time of the transaction to ensure continued access to services. The customer must ensure that there is a sufficient balance available on their SuperFreight Accounts at the time of the transaction.
c) For invoiced payments, all Fees and Charges must be made in full on or before the date that is 7 days from the date of the invoice. The Customer may apply for a credit limit and authorize the Company to debit their bank accounts directly for any Fees and Charges due by submitting the Business Credit Application[KWM1] .
No Set-Off or Deduction
4.3. All amounts payable under or in connection with this agreement must be paid without set-off, counterclaim, withholding, deduction or claim to a lien whatsoever, whether or not any such set-off, counterclaim, withholding, deduction or lien arises under this agreement (unless otherwise required by law).
4.4. If a party is required by law to make a deduction or withholding in respect of any sum payable under or in connection with this agreement to another party, it must, at the same time as the sum that is the subject of the deduction or withholding is payable, make a payment to the other party of such additional amount as is required to ensure that the net amount received by the other party will equal the full amount that would have been received by it had no such deduction or withholding been required to be made.
4.5. The Customer agrees to raise any billing disputes within 7 days of receipt of an invoice or transaction summary. Any billing disputes must be in written form and receipt must be acknowledged by the Company.
4.6. Any forthcoming credits will be passed on as credit notes to the Customer on the following invoice if applicable.
Default Interest
4.7. If a party fails to pay any sum payable by it under this agreement to another party at the time and otherwise in the manner provided in this agreement, it must pay interest on that sum from the due date of payment until that sum is paid in full at the Default Rate, calculated daily on the basis of a 365-day year and compounded monthly. Interest will accrue from day to day and will be payable on demand. The payment of interest by a party to another party in respect of any late payment under this clause 4.8 is in addition to any other remedies that the other party may have in respect of such late payment.
4.8. If a liability of a party to another party under this agreement becomes merged in a judgement or order and the interest rate that applies under that judgement or order is lower than the Default Rate, that party must, as an independent obligation, pay to the other party, at the same time and in the same manner as the sum that is the subject of that judgement or order is to be paid, such additional interest on that sum as is required to ensure that the total amount of interest that the other party receives in respect of that liability is equal to the Default Rate.
4.9. Any failure of the Customer to pay a valid invoice issued by the Company in accordance with this agreement shall represent a breach of Customer’s obligations under this agreement and shall entitle the Company to immediately terminate the Customer’s access to the Services and/or cease or suspend carrying out any Services.
This agreement will take effect from the Commencement Date and will remain in effect unless either party provides 15-day prior written notice to the other indicating their intention not to extend the agreement.
6.1. The Customer hereby employs and authorises the Company to contract either in its own name (if acting as the principal) or in the Customer’s name (if acting as the Customer’s agent) with any Subcontractor, and authorises any Subcontractor to contract the services of any other Subcontractor, for the performance of any of the Services agreed to be arranged or performed pursuant to, or ancillary to, this agreement. Any such contract may be made on any terms of contract whatsoever used by the Subcontractor with whom the Company or Subcontractor may contract for such Service(s), including terms which may limit or exclude liability in respect of the Service.
6.2. In any event, the Company shall be entitled to the full benefits of all privileges, rights and immunities available to any Subcontractor under such contract or compulsorily applicable law in respect of the Services provided. Any Subcontractor’s terms are available from the Company on request.
6.3. The Customer acknowledges that in contracting with third parties, the Company is subject to the terms and conditions imposed by those Subcontractors. Subject to any applicable law, the Customer shall not require the Company to take any action which would constitute a breach or fundamental breach of the Company’s obligations to its Subcontractors.
7.1. The Customer warrants:
(a) that it is the owner of the Goods or otherwise has the authority of the owner or person having an interest in the Goods or any part thereof to sign a Letter of Instruction, other contractual document or otherwise accept and consign the Goods upon and subject to these conditions.
(b) that the person releasing or delivering the Goods to the Company is authorised to sign the Company’s Letter of Instruction, other contractual document and/or otherwise accept and agree to these conditions on the Customer’s behalf.
(c) the adequacy of packing, stowing and suitability of the Goods for the Services contracted (including that it is not a Dangerous Good unless the Company has agreed in writing pursuant to clause 14) and accuracy of all markings and brandings of the Goods, descriptions, values and other particulars furnished to the Company for the carriage, customs, consular and any other purposes and undertakes to indemnify the Company against all loss, damage, expenses and fines arising from any inadequacy, unsuitability, inaccuracy or omission in this respect; and
(d) that the performance of any Service provided or arranged by the Company to effect the instructions of the Customer in respect of the Goods shall not be in breach of any law.
7.2. The Customer further warrants that, in signing the letter of instruction or otherwise accepting these conditions, the Customer did not rely on any representation, promise, warranty or condition of the Company or its Subcontractor not expressly made (in writing) part of this agreement.
Indemnities
8.1. The Customer shall have personal liability for, and hereby irrevocably indemnifies and covenants to hold the Company or its Representatives harmless from and against all Losses that may be suffered by the Company or its Representatives and which arise, directly or indirectly:
(a) in connection with a breach of any applicable laws or a term in this agreement by the Customer;
(b) in respect of any personal injury, death or property damage caused by the Customer;
(c) in respect of a breach of the rights of any third party (including intellectual property rights) by the Customer;
(d) in respect of any Losses arising from any inherent defect, quality or vice of the Goods, where the Goods are damaged due to inadequate or unsuitable packaging or storage or instructions regarding the packaging or storage from the Customer; or
(e) in respect of any Losses arising from any container demurrage, container detention or claims for container damage or container cleaning charges.
8.2. Each indemnity contained in this agreement is an additional, separate, independent and continuing obligation that survives the termination of this agreement despite any settlement of account or other occurrence and remains in full force and effect until all money owing, contingently or otherwise, under the relevant indemnity has been paid in full and no one indemnity limits the generality of any other indemnity.
Exclusions
8.3. Subject to the terms and conditions in this agreement and to the extent permitted by law, the Company shall not be liable for any Losses suffered by the Customer or any other person, howsoever caused or arising, whether:
(a) arising from an authorised or unauthorised act, or contemplated or uncontemplated act under this agreement;
(b) resulting from, or attributable to, any quotation, statement, representation or information, oral or written, made or given on behalf of the Company or its Representatives, or Subcontractors as to the classification of, liability for, amount, scale or rate of customs duty, excise duty or other impost or Tax applicable to any Goods subject of any Service;
(c) occasioned by the Company complying with any requirement or directive of any Government Authority in relation to the Goods;
(d) occasioned by examination of the Goods by any Government Authority;
(e) occasioned by treatment of the Goods by any Government Authority (including, without limitation, any fumigation or decontamination or other treatment by the Australian Quarantine and Inspection Service).
8.4. The Company and its Representatives expressly disclaim all conditions, representations and warranties (whether express or implied, statutory or otherwise) in relation to the Services, including any implied warranty of merchantability, fitness for a particular purpose or non-infringement. Without limitation to the foregoing, the Company makes no representation, and provides no warranty or guarantee, that:
(a) the Customer will achieve any particular results from the provision of the Services;
(b) any particular individuals or Subcontractors will perform the Services on behalf of the Company; or
(c) the Services will:
(i) be error-free or that errors or defects will be corrected; or
(ii) meet the Customer's requirements or expectations, whether expressly stated, implied or reasonably expected by the Customer.
8.5. To the maximum extent permitted by law, the Company and its Representatives expressly exclude liability for any damage and/or delay in the performance of any obligation of the Company under this agreement where such damage or delay is caused by a Force Majeure Event and the Company shall be entitled to a reasonable extension of time for the performance of such an obligation or be excused and released from such an obligation, provided that it has exercised reasonable care and due diligence in attempting to overcome such Force Majeure Event.
8.6. Except only for those rights and remedies the Customer is entitled to in respect of the Services under the Australian Consumer Law or where liability cannot be lawfully excluded, restricted or modified by this agreement:
(a) the Company excludes any liability for consequential loss;
(b) the Company excludes all conditions, warranties and implied terms, whether statutory or otherwise, in relation to the Services; and
(c) the provisions of the applicable law shall be deemed incorporated herein and any rights, immunities and/or defences therein shall be available to the Company.
8.7. For clarity and without limiting the above, every exemption, limitation, condition and liberty herein contained and every right, power, authority, exemption from liability, defence and immunity of whatsoever nature applicable to the Company or to which the Company is entitled hereunder shall also be available and shall extend to protect all Representatives of the Company.
Limitations
8.8. The Customer agrees and acknowledges that the aggregate liability of the Company and its Representatives shall be limited, in respect of any and all Claims for any Losses that the Customer may bring against the Company under this agreement or otherwise in respect of the Services, to the following (the choice of which is to be at the Company’s sole discretion):
(a) re-supply of the Services;
(b) payment of the costs of supply of the Services by a third party;
(c) the refund of any amounts paid by the Customer to the Company under this agreement in respect to the Services; or
(d) the value of the Goods lost or damaged whereby the parties agree that the value of the Goods is to be the invoice cost value of such Goods,
even if the Company has been advised of the possibility of such Losses.
9.1. Negotiated rates or prices between the Company and Customer may change, but only after 14 days’ notice in writing to the Customer. This notice may be given by mail, email, or notification on the Company’s website or platform (when the Customer logs into the website or platform).
9.2. The Customer acknowledges that Subcontractors may implement price changes at will, and accepts that such changes will be passed onto the Customer with any notice received by the Company from those Subcontractors. Any change to pricing will be effective from the date outlined by the Subcontractor in such notice.
9.3. All Fees and Charges shown on the Company’s website and/or platform are estimates only and subject to change, and are not binding on the Company unless separately confirmed for the Customer in writing. Final pricing may vary due to a variety of factors, including but not limited to reweighing and remeasuring of Goods. All Fees and Charges are payable by the Customer in accordance with the terms of this agreement. The Customer may submit any billing disputes related to the Fees or Charges to [Insert Email Address].
10.1. If the Company is instructed by the Customer and agrees to use a particular method or type of Service, the Company shall give due consideration to the method or type designated but shall at all times have the right to choose or vary such method or type of Service or route and procedure adopted in respect of the Service performed.
10.2. The Customer hereby authorises the Company to substitute alternate Carriers or Service providers without notice to the Customer.
Packaging
11.1. In addition to the Fees and Charges payable under clause 3, the Customer shall be liable to the Company for all Losses incurred for any reason in the provision of the Services, including the cost to its Carriers for labour and material required to re-pack, palletise or otherwise rectify or render secure the packaging of Goods to the extent which the Carrier considers in its absolute discretion to be required for the proper provision of its carriage services.
11.2. Notwithstanding the provisions of clause 11.1:
(a) the Company shall not be obliged to expend such labour or material and shall incur no liability whatsoever in consequence of either doing or not doing so;
(b) whether or not the Company expends such labour and material, the Goods shall be at the owner’s / Customer’s risk at all times;
(c) the Customer shall at all times be responsible for the conformity of any containers, packaging, pallets or similar items with any requirements of any Carrier or the applicable law; and
(d) the Customer shall indemnify the Company in respect of any failure to observe subclause 11.2(c).
Inspection
11.3. The Customer authorises the Company in effecting the Services, but with no obligation on the part of the Company, to allow inspection and/or release of the Goods or any information and/or documents of the Customer, the Goods, the Services or relating thereto as required by any Government Authority.
12.1. The Company shall have a particular and general lien on the Goods of the Customer and any documents relating thereto for all sums payable by the Customer to the Company. The Customer agrees that these terms and conditions constitute a security agreement for the purpose of the Personal Properties Security Act 2009 (Cth) (PPSA) and create a security interest in all Goods and documents relating thereto of the Customer to the extent that the Company and Customer agree by way of this agreement that the Company has the right to:
(a) exercise a general lien over all Goods and documents of the Customer in respect of any moneys owed by the Customer to the Company; and
(b) sell the Goods or a portion thereof and direct the proceeds of sale to payment to the Company of moneys owed by the Customer to the Company and remit any balance remaining (if such exists) to the Customer,
provided that the Company will notify the Customer and all other relevant persons of its intention to sell the Goods in accordance with the requirements of mandatorily applicable legislation. If no such legislation applies, the Company will exercise its right to sell the Goods or a portion thereof after a period of 7 days from the date which the Company notifies the Customer that it is exercising its rights of sale.
13.1. The Customer agrees to:
(a) sign any documents or provide further documents or information required by the Company to register a financing statement or financing change statement in respect of a security interest with the Personal Property Securities Register, register any other documents required by the PPSA or correct any such document(s);
(b) indemnify the Company for all expenses incurred in attending to the steps outlined in (i) above and releasing any interests from the Register;
(c) not register a financing change statement in respect of a security interest without prior written consent by the Company; and
(d) not register, nor permit to be registered, a financing statement or a financing change statement in relation to the Goods in favour of a third party without the prior written consent of the Company.
13.2. The Company and Customer agree that sections 96, 117 and 125 of the PPSA do not apply to the security agreement created by these terms and conditions.
13.3. The Customer hereby waives its rights to receive notices or statements under sections 95, 118, 121(4), 123, 130, 132(3)(d), 132(4), 135 and 157 of the PPSA.
13.4. The Customer waives its rights as a grantor and/or a debtor under sections 142 and 143 of the PPSA.
13.5. The Customer agrees to ratify unconditionally any actions taken by the Company pursuant to registration-related requirements under the PPSA and as referred in clause 13.1(a) above.
14.1. Except as agreed in writing, the Company will not accept Dangerous Goods for Services arranged or performed by the Company.
14.2. If the Company agrees to perform any Services for Dangerous Goods:
(a) such Goods must be packed in a manner adequate to withstand the ordinary risks of any Service, having regard to the nature of the Goods and in compliance with all laws and regulations which may be applicable with respect to any Service;
(b) such Goods must be distinctly marked having regard to their nature, and accompanied with a full written declaration disclosing the nature of the Dangerous Goods;
(c) the Customer must comply with:
i. all laws, regulations, ordinances and codes that deal with the carriage of Dangerous Goods, including but not limited to the Australian Code for the Transport of Dangerous Goods by Road & Rail and the International Maritime Dangerous Goods Code;
ii. any additional requirements imposed by the Carrier.
Liability for Loss
14.3. If the Company agrees to perform any Services for Dangerous Goods, or if the Customer otherwise causes the Company or its Subcontractors to handle or deal with any such goods:
(a) without limiting the operation of clause 8, the Customer shall indemnify the Company against all Claims and Losses arising in consequence of any breach of this clause 14. This indemnity extends to consequential losses; and
(b) the Customer alone (not the Company or its Subcontractors) shall be liable for any Loss, damage or cost thereto or consequent thereon whether direct, indirect or consequential and howsoever caused and the Customer shall indemnify the Company from and against all Losses arising in connection therewith.
Destruction or Disposal
14.4. Upon any Dangerous Goods or parts of Dangerous Goods becoming hazardous, liable to harm others or deteriorating (in the reasonable opinion of the Company or its Subcontractor), it may be destroyed, disposed of, abandoned or rendered harmless in the sole and absolute discretion of the Company or any other person in whose custody they may be at the relevant time. In the event that the goods are destroyed or otherwise dealt with as aforesaid, the Company shall bear no liability and the Customer shall indemnify the Company from and against all Losses with respect thereto.
14.5. The Customer’s compliance with clause 14.2 above in no way reduces or limits those rights afforded to the Company under clause 14.1, 14.3 and 14.4.
15.1. Except as agreed in writing, the Company will not accept Valuables for Services arranged or performed by the Company.
15.2. If the Company agrees to perform any Services for Valuables:
(a) such Goods must be packed in a manner adequate to withstand the ordinary risks of any Service, having regard to the nature of the Goods;
(b) such Goods must be distinctly marked having regard to their nature, and accompanied with a full written declaration disclosing the nature of the Valuables;
(c) the Customer must comply with any additional requirements imposed by the Carrier.
Liability for Loss
15.3. If the Company agrees to perform any Services for Valuables, or if the Customer otherwise causes the Company, its Subcontractors or Carriers to handle or deal with any such goods:
(a) without limiting the operation of clause 8, the Customer shall indemnify the Company against all Claims and Losses arising in consequence of any breach of this clause. This indemnity extends to consequential losses; and
(b) the Customer alone (not the Company, its Subcontractors or Carriers) shall be liable for any loss, damage or cost thereto or consequent thereon whether direct, indirect or consequential and howsoever caused and the Customer shall indemnify the Company from and against all Losses arising in connection therewith.
15.4. The Customer’s compliance with clause 15.2 above in no way reduces or limits those rights afforded to the Company under clauses 15.1 and 15.3.
Delivery
16.1. The Company is authorised to deliver the Goods to the consignee or its agent at the address nominated to the Company by either the Customer, the consignor, the consignee or their agents and it is expressly agreed that the Company shall be deemed to have delivered the Goods in accordance with this agreement if it or the relevant Subcontractor obtains a receipt, signed delivery docket for the Goods or signature on its consignment note/device from any person at that address.
16.2. If the nominated place of delivery shall be unattended or if delivery cannot otherwise be effected as per clause 16.1, the Company or its Subcontractor in its sole discretion may choose to:
(a) deposit the Goods at the nominated place, deeming it reasonably safe or secure to leave, and at the risk of the Customer; or
(b) store the Goods at the risk and expense of the Customer,
both of which will be deemed to be delivery of the Goods under this agreement.
No Guarantee or Warranty
16.3. Subject to any applicable law, the Company gives no guarantee or warranty or undertaking:
(a) as to time of pick-up or delivery of Goods; or
(b) that it will inform the Customer or any other person of the expected or actual time of pick-up or delivery and may in its discretion cancel the supply of Services at any time without liability to any person.
17.1. The Company and its Subcontractors shall be entitled at the cost and expense of the Customer, subject to any compliance with any applicable law, to sell or dispose of:
(a) Goods which in the opinion of the Company or Subcontractor cannot be delivered by reason of the Goods being insufficiently or incorrectly addressed or by reason of the Goods not being collected or accepted by the consignee or for any other reason; and
(b) any perishable goods which in the opinion of the Company or the Subcontractor appear to be deteriorating, if the Customer fails to adequately instruct the Company with respect thereto or fails to pay any costs and expenses necessary to implement the Customer’s instructions.
17.2. If the Goods are sold pursuant to clause 17.1 above, the Company may use the proceeds of sale to discharge any Fees and Charges owed by the Customer, including the costs of sale. Any balance of any proceeds remaining following such discharge will be remitted to the Customer.
Definitions Regarding GST
18.1. In this clause 18:
(a) expressions that are not defined, but which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 (Cth), have the same meaning as that Act;
(b) any part of a supply that is treated as a separate supply for GST purposes (including attributing GST payable to tax periods) will be treated as a separate supply for the purposes of this clause 18; and
(c) any consideration that is specified to be inclusive of GST must not be taken into account in calculating the GST payable in relation to a supply for the purpose of this clause 18.
Consideration is Exclusive of GST
18.2. Unless expressly stated otherwise, any sum payable, or amount used in the calculation of a sum payable, under this agreement has been determined without regard to GST and must be increased on account of any GST payable under this clause 18.
Customer to Pay Additional Amount
18.3. If GST is imposed on any supply made under or in accordance with this agreement, the Customer must pay to the Company an additional amount equal to the GST payable on the supply, subject to the Customer receiving a valid tax invoice in respect of the supply at or before the time of payment. Payment of the additional amount will be made at the same time and in the same manner as payment for the supply is required to be made in accordance with this agreement.
Fines, Penalties and Interest
18.4. The amount recoverable on account of GST under this clause 18 by the Company will include any fines, penalties, interest and other charges incurred as a consequence of any late payment or other default by the Customer under this clause 18.
Reimbursement
18.5. If any party is required to pay, reimburse or indemnify another party for the whole or any part of any cost, expense, loss, liability or other amount that the other party has incurred or will incur in connection with this agreement, the amount must be reduced by the amount for which the other party can claim an Input Tax Credit, partial Input Tax Credit or other similar offset.
Adjustment Events
18.6. If, at any time, an adjustment event arises in respect of any supply made by a party under this agreement, a corresponding adjustment must be made between the parties in respect of any amount paid to the Company by the Customer pursuant to clause 18.3 and payments to give effect to the adjustment must be made and the Company must issue an adjustment note.
19.1. The Customer shall exercise all reasonable care and comply with all applicable laws, Government Authority regulations or directions and industry standards including those relating to the packing, carriage, storage, customs clearance, delivery, inspection or other Services in respect of the Goods, and shall provide such information and documents to the Company as may be necessary to exercise such care and comply with such laws, regulations and standards. The Company shall not be liable to the Customer or any other party for any Losses due to the Customer’s failure to comply with this clause and the Customer will indemnify the Company for any Losses incurred by the Company in so complying.
Australian Consumer Law
20.1. Unless expressly stated otherwise, these terms do not affect the Customer’s rights pursuant to Australian Consumer Law if the Customer is a ‘Consumer’ or ‘Small Business’ and this agreement with the Customer is a ‘Consumer Contract’ or Small Business Contract’ – all quoted terms as defined under Australian Consumer Law. To the extent that any term or a part thereof is rendered inapplicable or void by Australian Consumer Law or any other legislation, it shall be rendered inapplicable or void only to the extent required to give effect to that legislation but not further.
20.2. If the Customer is a ‘Consumer’ or ‘Small Business’ and this agreement is a ‘Consumer Contract’ or ‘Small Business Contract’ as defined under the Australian Consumer Law, the parties agree that:
(a) the prevention of Claims and indemnity referred in clause 8 above as against the Company’s Representatives or Subcontractors and/or vicariously liable persons will only apply to the extent permitted by law;
(b) the Customer’s indemnity referred under clause 8 above will not apply to the extent that the Claim or Losses incurred by the Company resulted from the negligence, recklessness or wilful act of the Company or its Representatives.
Warranty and Representation
20.3. Unless written notification to the contrary is given by the Customer to the Company at or prior to entering into this agreement, the Customer expressly warrants and represents that all or any Services to be supplied by the Company and acquired by the Customer pursuant to this agreement are so supplied and acquired for the purposes of a business, trade, profession or occupation carried on or engaged in by the Customer.
Applicable Law
20.4. If the carriage of Goods involves an ultimate destination or stop in a country other than the country of departure, the relevant Carriage by Air Convention may apply. For international road transportation, the Convention for the International Carriage of Goods by Road (CMR) may apply. These Conventions will govern and limit the liability of the carrier in respect of Losses or delay to cargo, unless a higher value is declared in advance by the Customer and a supplementary charge paid if required.
21.1. Subject to clause 21.3, a Disclosee must:
(a) keep all Confidential Information confidential;
(b) not use or exploit any Confidential Information in any way except in the proper performance of the Services in accordance with this agreement;
(c) not disclose or make available any Confidential Information in whole or in part to any third party;
(d) not copy, reduce to writing or otherwise record any Confidential Information except in the proper performance of the Services in accordance with this agreement (and any such copies, reductions to writing and records will be the property of the Discloser); and
(e) ensure that any and all Authorised Third Party Disclosees:
i. comply with the obligations in this agreement as if each of them was a party to this agreement in the place of the Disclosee; and
ii. do not do, or omit to do, anything which, if done or omitted to be done by the Disclosee, would constitute a breach of this agreement by the Disclosee.
21.2. The Disclosee shall be responsible for, and liable to the Discloser in respect of, the actions or omissions of any and all of its Authorised Third Party Disclosees in relation to the Confidential Information as if they were the actions or omissions of the Disclosee.
Exceptions
21.3. The Disclosee may disclose Confidential Information to those of its Representatives who have an actual need to know the Confidential Information, but only in the proper provision of the Services and performance of its duties under this agreement.
21.4. Prior to disclosure, the Disclosee must inform the relevant Representatives of the confidential nature of the Confidential Information.
21.5. Subject to clause 21.6, the obligations in clause 21.1 will not apply to any Confidential Information which (as shown by appropriate documentation and other evidence in the relevant Disclosee’s possession):
(a) was already known to the Disclosee on a non-confidential basis prior to the time of its first disclosure by the Discloser to the Disclosee, unless it came to be so known as a direct or indirect result of having been:
i. unlawfully obtained by the Disclosee, whether from a third party or otherwise; or
ii. received by the Disclosee from a third party that owed a confidentiality obligation to the Discloser in respect of that information at the time of such receipt, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the third party owed that confidentiality obligation to the Discloser;
(b) is or becomes generally available to the public, unless it became so generally available as a direct or indirect result of having been disclosed by any person:
i. in circumstances that constitute a breach of this agreement by the Disclosee (for the avoidance of doubt, including any breach by the Disclosee of its obligations under clause 21.1(e) to ensure that its Authorised Third Party Disclosees comply with the obligations in this agreement as if they were parties to this agreement in the place of the Disclosee); or
ii. that owed a confidentiality obligation to the Discloser in respect of that information at the time of such disclosure, in circumstances in which the Disclosee knew, or ought reasonably to have known after due enquiry, that the person owed that confidentiality obligation to the Discloser;
(c) is, after the time of its first disclosure by the Discloser to the Disclosee, lawfully received by the Disclosee from a third party and the Disclosee reasonably believed, after due enquiry, that the information was not so received as a direct or indirect result of a breach by any person of a confidentiality obligation owed to the Discloser;
(d) is required by law or court order to be disclosed, provided that the Disclosee must:
i. promptly notify the Discloser in writing in advance of any such disclosure, if reasonably practicable; and
ii. reasonably assist the Discloser in obtaining confidential treatment for, or avoiding or minimising such disclosure of, the relevant Confidential Information to the extent reasonably requested by the Discloser;
(e) is independently developed by the Disclosee without any direct or indirect use of, reference to, or reliance on any Confidential Information; or
(f) is authorised for release or use by the written pre-approval of the Discloser but only to the extent of such written pre-approval.
21.6. The exceptions in clause 21.5 shall not apply to any specific Confidential Information merely because it is included in more generally non-confidential information, nor to any specific combination of Confidential Information merely because individual elements, but not the combination, are included in non-Confidential Information.
22 Insurance and Carrier Claims
Insurance
22.1. Except as provided for under this clause or otherwise agreed in writing, the Company shall not provide for any insurance over the Goods or any Services provided under this agreement.
22.2. The Company shall take out and maintain public liability insurance for the Contract Term in the amount of no less than ten million Australian Dollars ($10,000,000 Australian Dollars) to cover the performance of its obligations under the agreement.
22.3. The Company shall take out and maintain any other relevant insurance (such as freight insurance) as and when necessary.
22.4. If the Company has agreed in writing to insure or arrange insurance for the Goods, then, the liability of the Company is limited to the amount, if any, it is liable to pay under such insurance for physical loss of or damage to goods, provided that any such liability shall be based on:
(a) the cost to purchase or manufacture like goods; or
(b) in the case of repairable damaged goods, the cost of repair;
excluding GST except to the extent that the Customer is not legally able to claim an adjustment by way or refund of or reduction in or an Input Tax Credit with respect to GST paid or payable to replace or repair lost or damaged goods (as the case may be).
Carrier Claims
22.5. Where the Company engages a Carrier on terms which include insurance provided by the Carrier, or on terms where a Carrier stipulates an internal Claims procedure, the Company may, at its discretion, assist the Customer in processing such Claims with the Carrier. The Customer indemnifies the Company against all Losses reasonably incurred in this process.
22.6. Regardless of whether the Company assists the Customer in processing Claims with the Carrier, the Company shall not be held liable for any Losses or unsuccessful Claims, even if the Company’s action or inaction contributes to such Losses (provided that the Company has acted in good faith).
Termination for Breach
23.1. The Company may terminate this agreement immediately by notice to the Customer if an Event of Default occurs in respect of the Customer.
23.2. If the Company commits any material or persistent breach of this agreement, the Customer may (but is not obliged to) provide the Company with a notice of breach in writing. If the Company fails to remedy the breach within 20 Business Days after the date of its receipt of such notice, the Customer may terminate this agreement with immediate effect upon providing the Company with a further notice of termination in writing.
Termination with Notice
23.3. The Company may, without limitation to its rights under clause 23.1, terminate this agreement at any time by giving at least 1 month’s notice in writing to the Customer. The Customer may waive all or part of such notice period.
23.4. The Customer may, without limitation to its rights under clause 23.2, terminate this agreement at any time by giving at least 1 month’s notice in writing to the Company.
Effect of Termination
23.5. In the event of any termination of this agreement:
(a) the Customer will not have any liability to make any further payments to the Company except that, if such termination takes effect part of the way through a particular month of the Services, the Customer will remain liable to pay the pro rata proportion of the Fees and Charges for that month accrued prior to the date on which such termination takes effect, subject always to receipt of an appropriate invoice from the Company under clause 4.1 will apply in respect thereof; and
(b) subject to payment of all outstanding Fees and Charges by the Customer in accordance with the terms of this agreement, the Company shall complete the Services corresponding to such Fees and Charges within the scope as agreed. The Company shall not otherwise be obliged to commence or complete any Services.
During Notice Period
23.6. In the event that the Company’s engagement under this agreement is terminated upon notice by either party, the Customer may, at its absolute discretion, require the Company to refrain from providing the Services during the relevant notice period.
Ipso Facto Legislation
23.7. If any provision of this agreement is otherwise unenforceable by virtue of the operation of the Treasury Laws Amendment (2017 Enterprise Incentives No. 2) Act 2017 (Cth), upon the occurrence of an Insolvency Event in respect of a particular party, notwithstanding any other provision of this agreement, to the maximum extent permitted by law:
(a) time is of the essence in respect of all obligations of that party under this agreement (whether falling due for performance before, upon or after the occurrence of that Insolvency Event); and
(b) any breach of this agreement by that party (whether occurring before, upon or after the occurrence of that Insolvency Event), however minor, will (alone or, severally, in combination with the occurrence of that Insolvency Event) be deemed to be a material breach of this agreement,
and, if any such material breach has occurred or occurs, the parties acknowledge and agree that such provision will instead be enforceable by virtue of the occurrence of that material breach.
Accrued Rights
23.8. Termination of this agreement will not affect any rights or liabilities that the parties have accrued under it prior to such termination.
Survival
23.9. The obligations of the parties under clause 8 (Exclusion and Limitation of Liability), clause 21 (Confidentiality), clause 22 (Insurance and Carrier Claims) and this clause 23.9. will survive the termination of this agreement.
24.1. A notice given to a party under this agreement must be:
(a) in writing in English;
(b) sent to the address or email address of the relevant party as set out in the list of parties that starts on page 4 of this agreement (or such other address or email address as the relevant party may notify to the other party from time to time); and
(c) delivered/sent either:
(i) personally;
(ii) by commercial courier;
(iii) by pre-paid post;
(iv) if the notice is to be served by post outside the country from which it is sent, by airmail; or
(v) by email.
24.2. A notice is deemed to have been received:
(a) if delivered personally, at the time of delivery;
(b) if delivered by commercial courier, at the time of signature of the courier’s receipt;
(c) if sent by pre-paid post, 48 hours from the date of posting;
(d) if sent by airmail, five days after the date of posting; or
(e) if sent by e-mail, 4 hours after the sent time (as recorded on the sender’s e-mail server), unless the sender receives a notice from the party’s email server or internet service provider that the message has not been delivered to the party,
except that, if such deemed receipt is not within business hours (meaning 9:00 am to 5:30 pm on a Business Day), the notice will be deemed to have been received at the next commencement of business hours in the place of deemed receipt.
24.3. To prove service, it is sufficient to prove that:
(a) in the case of post – that the envelope containing the notice was properly addressed and posted; and
(b) in the case of email – the email was transmitted to the party’s email server or internet service provider.
25.1. The Company is not a common carrier and accepts no liability as such. The Company reserves the right to refuse at its sole discretion the arranging, undertaking or performing of any of the Services for the Customer whether before, during or after the Service has commenced and further reserves the right to open and/or inspect all Goods at its discretion and at the Customer’s expense.
25.2. The Customer shall indemnify the Company in all circumstances where a Carrier (at its absolute discretion):
(a) refuses (without need to show cause) carriage of the Goods to any person (including the Customer) whether before or after collection of the Goods or transportation by the Carrier has occurred;
(b) without limiting clause 11.2(a), refuses to pick up or deliver the Goods where facilities and resources available at the point of pick-up or delivery (as the case may be) are not adequate to properly and safely effect loading, unloading or other handling of goods;
(c) without limiting clause 11.2(a), refuses to pick up or deliver the Goods where the Customer or the Company has failed to obtain proper insurance;
(d) opens any document, envelope, package or other container in which goods are placed or packaged to inspect the Goods to determine the nature or condition of the Goods, or, where any consignment note or identifying document or mark is lost, damaged or destroyed, to ascertain the ownership or intended destination of the Goods, provided however that the Company and the Carrier shall not be obliged to do so and shall incur no liability whatsoever in consequence of either doing or not doing so.
26.1. This contract constitutes the entire agreement between the Company and the Customer and contains the entire understanding between the parties in relation to its subject matter and supersedes any previous arrangement, understanding or agreement relating to its subject matter.
26.2. There are no express or implied conditions, warranties, promises representations or obligations, written or oral, in relation to this agreement other than those expressly stated in it or necessarily implied by statute.
26.3. Services are arranged, undertaken and/or performed by the Company subject only to the terms and conditions of this agreement.
26.4. This agreement may not be varied except by written instrument executed by all of the parties.
27.1. A party must not assign or otherwise transfer, create any charge, trust or other interest in, or otherwise deal in any other way with, any of its rights under this agreement without the prior written consent of the other party.
28.1. To the extent of any inconsistency of enforceable terms or a part thereof herein, these terms will prevail over any other terms issued by the Company or Customer.
28.2. The use of the Customer’s own form is no derogation to these terms and conditions.
29.1. If a provision of this agreement is invalid or unenforceable in a jurisdiction:
(a) it is to be read down or severed in that jurisdiction to the extent of the invalidity or unenforceability; and
(b) that fact does not affect the validity of enforceability of that provision in another jurisdiction, or the remaining provisions.
29.2. No failure, delay, relaxation or indulgence by a party in exercising any power or right conferred upon it under this agreement will operate as a waiver of that power or right. No single or partial exercise of any power or right precludes any other or future exercise of it, or the exercise of any other power or right under this agreement.
30.1. This agreement and any disputes or claims arising out of or in connection with its subject matter or formation (including non-contractual disputes or claims) are governed by the laws of Victoria, Australia.
30.2. The parties irrevocably agree that the courts of Victoria, Australia have exclusive jurisdiction to settle any dispute or claim that arose out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
31.1. This agreement may be executed in any number of counterparts, each of which is an original and which together will have the same effect as if each party had signed the same document.
31.2. Delivery of an executed counterpart of this agreement by email in PDF or other image format will be equally effective as delivery of an original signed hard copy of that counterpart.
31.3. If a party delivers an executed counterpart of this agreement under clause 31.2:
(a) it must also deliver an original signed hard copy of that counterpart, but failure to do so will not affect the validity, enforceability or binding effect of this agreement; and
(b) in any legal proceedings relating to this agreement, each party waives the right to raise any defence based upon any such failure.
32.1. Each party must (at its own expense, unless otherwise provided in this agreement) promptly execute and deliver all such documents, and do all such things, as any other party may from time to time reasonably require for the purpose of giving full effect to the provisions of this agreement.
33.1. All costs and expenses in connection with the negotiation, preparation and execution of this agreement, and any other agreements or documents entered into or signed pursuant to this agreement, will be borne by the party that incurred the costs.
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