THIS SUPPLIER AGREEMENT (THE “AGREEMENT”) CONTAINS THE TERMS AND CONDITIONS THAT GOVERN YOUR ACCESS TO AND USE OF MOSCORD SERVICES THROUGH A PARTICULAR ACCOUNT OR ACCOUNTS AND IS AN AGREEMENT BETWEEN YOU OR THE BUSINESS YOU REPRESENT (“YOU” and “SUPPLIER”) AND MOSCORD PTE LTD (“MOSCORD”, “WE” and “US”). BY REGISTERING FOR OR USING THE SERVICES, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, INCLUDING THE APPENDICES, RULES AND POLICIES FOR EACH SERVICE YOU REGISTER FOR OR USE IN CONNECTION WITH MOSCORD’S WEBSITE.
Moscord and the Supplier shall be hereinafter collectively referred to as the “Parties”, a “Party” or the “other Party”, as the case may be. Capitalised terms have the meanings listed in the Definitions below. If there is any conflict between these General Terms and the applicable Appendix, the terms of the Appendix will govern..
1. TRADING PLATFORM
Moscord operates an internet platform (“Trading Platform”) under which Products provided by a variety of suppliers are aggregated at Moscord’s discretion. It is intended that such Products will be displayed at Moscord’s discretion and offered to potential buyers of the Products (“Customers”) whereupon Customers are invited to submit purchase orders addressed to the respective suppliers offering to purchase products. The respective suppliers may select to accept such purchase orders at its sole and absolute discretion whereupon such supplier may submit its confirmation to such Customer. The Supplier may from time to time execute Appendices to this Agreement whereupon additional terms may apply..
2.1 Moscord shall provide a portal pursuant to which Customer is permitted access to a Trading Platform (“Services”) under which products marketed by various suppliers to Customers are displayed. Supplier may from time to time submit details of products (“Products”) to be marketed by the Trading Platform to Customers and request Moscord to display the Products on the Trading Platform. Customer(s) may from time to time select to offer to purchase (“Offer”) such Products (“Offered Products”) from Supplier through the Trading Platform and subject to the Offer being compliant to the rules (“Rules”) and policies (“Policies”) applicable to such Customer, in Moscord’s sole and absolute discretion, such Offer shall be forwarded to Supplier..
2.2 The Services are provided by on an as-available basis and Moscord does not grant any service level agreement to Supplier. In the event Supplier requires service levels to be in place to manage specific events, please contact Moscord and state your requirements for dedicated server capacity, burstable IP transit bandwidth and service levels, which will be available to Supplier subject to terms and conditions and pricing proposal. Moscord will endeavour to reply within 7 days with the pricing proposal. Supplier’s access to and use of the Trading Platform shall be subject to Rules and Policies . These Rules and Policies govern the Supplier’s use of the Trading Platform and other services provided by Moscord from time to time and concern primarily operational matters relating to the same. For example, there is the Acceptable Use Rules which governs the Supplier’s use of the portal, the Data Protection Rules which sets out Moscord’s data protection rules and Our Liability Policy which sets out Moscord’s liability policy. The Rules and Policies may be varied or removed by Moscord in its sole and absolute discretion and new Rules and Policies may be added by Moscord in its sole and absolute discretion. For example, Moscord may revise its Rules and Policies to conform to any improvements in its operational procedure and to conform to adjustments in laws in any of the numerous jurisdictions in which it operates. If Supplier is unable to manage with any Rules and Policies, Supplier must immediately give Moscord express notification in writing and cease access and use of the Trading Platform so that Supplier may limit its exposure to such Rules and Policies. Otherwise, Supplier is deemed to have agreed with all Rules and Policies and/or any variation, addition or removal of Rules and Policies.
2.3 Supplier agrees that Moscord is not a party to any contract, compromise, or any other arrangement made pursuant to any provision of this Agreement (“Contract”, for purposes of this clause 2.3) or any transaction or matter reasonably related to such Contract (“Relevant Matter”, for purposes of this clause 2.3) hereof and shall not allege, make, pursue or assist in any claim against Moscord in respect of any Contract or Relevant Matter. Supplier agrees to procure that all Contracts shall include provisions providing that Customer agrees that Moscord is not a party to such Contract and shall not allege, make, pursue or assist in any claim against Moscord in respect of such contracts or Relevant Matter..
2.4.1 Moscord may terminate the Services by notice with immediate effect in the event of the breach of any provisions herein and the other Party has not remedied such breach of the Agreement within fifteen (15) Business Days of notice to do so. For the avoidance of doubt, any steps taken by Supplier shall not limit or exclude Moscord’s entitlement to claim against Supplier any costs, expenses, damages, and any other losses.
2.4.2 Either Party shall be entitled to terminate the Services by giving express prior written notice to the other Party. In such case, the Services shall be terminated at the later of the following dates: (a) the day following three (3) months after such notice; or (b) on the day all Accepted Service Requests arising in respect of all Appendices has been performed by Moscord or terminated by Moscord.
3. HANDLING FEE
3.1 In the event Supplier concludes a binding contract with Customer in respect of the Offered Products (“Accepted Purchase Order”), Supplier shall without delay notify Moscord in such manner, in such form prescribed by Moscord and with such details specified by Moscord. Moscord is entitled to receive a handling fee (“Handling Fee”) in respect of all Accepted Purchase Orders as set out in Appendix 1 herein and the terms and conditions therein shall apply. The Handling Fee shall be exclusive of all applicable taxes. For purposes of this clause 3.1, “taxes” means sales, use, transfer, privilege, excise, VAT, GST, consumption tax, and other similar taxes and duties, whether foreign, national, state or local, however designated, now in force or enacted in the future, which are levied or imposed by reason of the performance by Moscord or Supplier under this Agreement or by Supplier with respect to its operations and use of the Services.
3.2 The Handling Fees are payable on a monthly basis and all Handling Fees in relation to Accepted Purchase Orders executed in a particular calendar month (“Service Request Month”) shall become due for payment by Supplier to Moscord due for immediate payment: (a) on the last day of the month following such Service Request Month; or (b) immediately upon the issue by Moscord of an invoice itemising the Accepted Purchase Order; whichever the earlier event.
3.3 For the avoidance of doubt, the Handling Fee: (a) is not a commission on the sale of Products from Supplier to Customer that is payable only upon successful delivery, successful completion of the obligations therein or otherwise; (b) shall not include, without limitation, duties, taxes and levies, consular and attestation fees, cost of preparing bank guarantees and insurance premiums.
4.1 RELATIONSHIP. Nothing in this Agreement shall be construed as creating a joint venture, partnership, agency, employer/employee or similar relationship between the Parties, or as authorizing either Party to act as the agent of the other. Moscord’s relationship to the Supplier is that of an independent contractor. No Party shall have no authority to bind the other Party to any contractual terms. Neither Party has authority to assume or create obligations of any kind on the other’s behalf. Supplier hereby expressly agrees that Moscord is not an agent nor holds itself out as agent of Supplier irrespective of the context.
4.2 SUB-CONTRACTING, THIRD PARTIES, AGENTS, ETC.
(a) Moscord may sub-contract its obligations, including without limitation operation and maintenance of the Trading Platform, to third parties. Supplier agrees to limit the liability of and indemnify such third parties to the same extent that the provisions contained herein limit the liability of Moscord and impose on Supplier the obligation to indemnify Moscord (respectively).
(b) For all purposes under this Agreement, the Supplier has full responsibility and liability for all acts or omissions of Supplier’s Authorized Persons, Accompanying Persons, Associated Entities, agents, and all other representatives, and all such acts or omissions will be attributed to Supplier for all purposes, including for the purposes of determining whether Supplier has breached the Agreement. Without limiting the foregoing, the Supplier is responsible and must ensure that Supplier’s Authorized Persons, Accompanying Persons, Associated Entities, agents, and all other representatives do not take any actions that Supplier is prohibited from taking under the Agreement.
4.3 GOVERNING LAW AND JURISDICTION.
4.3.1 This Agreement shall be governed by the laws of England and Wales without regard to principles or rules of conflict of laws. The United Nations Conventions on Contracts for the International Sale of Goods will not apply to this Agreement. The Parties submit irrevocably to the non-exclusive jurisdiction of the Courts of England and Wales.
4.3.2 NEGOTIATION. The Parties shall attempt to settle in good faith any dispute or difference which arises between them out of or in connection with this Agreement, by negotiations, prior to resorting to any judicial process.
4.4 PREVALENCE. In the event of ambiguity, conflict or inconsistency among the documents comprising this Agreement, the documents shall be given an order of precedence as follows where the terms of the earlier-listed document will prevail over the terms of the later-listed document as follows: (i) the Rules; (ii) the Appendices; (iii) this Agreement; (iv) the Policies; and (v) any other category of documents.
4.5 CONFIDENTIAL INFORMATION AND INTELLECTUAL PROPERTY.
4.5.1 Supplier will not disclose Confidential Information from Moscord without the express prior written consent of Moscord except where:
(a) the disclosure is required by applicable law or regulation or by an order of a court or other governmental body having jurisdiction after giving reasonable notice to Moscord with adequate time for Moscord to seek a protective order;
(b) the disclosure is necessary under any applicable securities laws regarding public disclosure of business information; or
(c) the disclosure is absolutely necessary for Supplier to exercise its rights and perform its obligations under this Agreement, so long as in all cases referenced above, in this sub-clause (c), the disclosure is no broader than strictly necessary, and the person or entity who receives the disclosure agrees prior to receiving the disclosure to keep the information confidential to a similar or greater degree confidentiality as that applicable to Supplier.
4.5.2 Supplier is responsible for ensuring that any Confidential Information of Moscord that Supplier discloses pursuant to this Agreement (other than disclosures pursuant to sub-clauses 4.5.1(a), 4.5.1(b) and 4.5.1(c) above that cannot be kept confidential by Supplier) is kept confidential by the person receiving the disclosure to the same extent that the receiving Party must keep the information confidential.
4.5.3 Moscord does not grant the other Party the right to use its trademarks, service marks, trade names, logos, copyrights, or other intellectual property rights or other designations in any promotion, publication, or press release without the prior written consent of Moscord. Supplier shall be solely responsible for the design, development, supply, production and performance of the Products and the protection of its trade names, patents and any other intellectual property relating to such Products.
4.6 INTERPRETATION. Words of the masculine gender will be deemed and construed to include correlative words of the feminine and neuter genders. Words importing the singular number will include the plural number and vice versa unless the context will otherwise indicate. References to clauses of this Agreement are to this Agreement as originally executed. Words importing persons include firms, partnerships, joint ventures, joint stock companies, trusts, incorporated or un-incorporated organisations, governmental or regulatory bodies or entities, associations and corporations. References herein to “include”, “includes” or “including” shall mean without limitation or exhaustion. The headings in this Agreement are for reference only, and shall not affect the interpretation of this Agreement.
4.7 DISCLAIMERS, INDEMNIFICATION, ETC.
4.7.1 Supplier agrees to indemnify, hold Moscord harmless against and pay all losses, costs, damages or expenses, whatsoever, including counsel fees, which Moscord may sustain or incur in respect of any breach of this Agreement. Supplier shall defend any claim made by any party against Moscord at its expense. Moscord is entitled to participate in the defence at its own expense. This provision shall survive and remain in full force and effect after the termination or non-renewal of this Agreement.
4.7.2 ALL SERVICES PROVIDED BY MOSCORD TO SUPPLIER PURSUANT TO THIS AGREEMENT ARE PROVIDED OR PERFORMED ON AN “AS IS”, “AS AVAILABLE” BASIS, AND SUPPLIER’S USE OF MOSCORD’S SERVICES IS SOLELY AT ITS OWN RISK. SUPPLIER ACKNOWLEDGES AND ACQUIESCES THAT MOSCORD RELIES ON THE INTERNET, WHICH COMPRISES A GLOBAL INTERCONNECTION OF INDEPENDENT HARDWARE AND SOFTWARE INFRASTRUCTURE WHICH IT HAS NO CONTROL OVER.
4.7.3 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL MOSCORD BE LIABLE TO SUPPLIER FOR (I) LOST PROFITS; (II) LOSS OF BUSINESS; (III) LOSS OF REVENUES; (IV) LOSS OF DATA OR INTERRUPTION OR CORRUPTION OF DATA; (V) ANY CONSEQUENTIAL OR INDIRECT DAMAGES; OR (VI) ANY INCIDENTAL, SPECIAL, RELIANCE, EXEMPLARY OR PUNITIVE DAMAGES (IF APPLICABLE), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
4.7.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, MOSCORD’S TOTAL LIABILITY TO SUPPLIER IN THE AGGREGATE FOR THE ENTIRE TERM OF THIS AGREEMENT (AND REGARDLESS OF WHETHER THE CLAIMS ARE BROUGHT DURING OR AFTER SUCH TERM) WITH RESPECT TO ALL CLAIMS ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING ATTORNEY’S FEES) WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY SUPPLIER TO MOSCORD FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE MONTH IN WHICH THE FIRST CLAIM AROSE OR USD 5,000, WHICHEVER THE LOWER AMOUNT.
4.7.5 THE LIMITATIONS SET FORTH IN SUB-CLAUSES TO 4.7.2 TO 4.7.4 WILL APPLY TO ALL CLAIMS AND CAUSES OF ACTION, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY.
4.7.6 Moscord and Supplier each waive the right to bring any claim against the other Party arising out of or in any way relating to this Agreement more than one (1) year after the date these Services are discontinued, expired, terminated or otherwise ceased.
Each Party recognizes and agrees that the warranty disclaimers, limitations of liability and remedy limitations in this Agreement are bases of this Agreement materially bargained for by Moscord and Supplier.
4.8 ASSIGNMENT. Supplier may not assign, attempt to assign, take any steps to assign or otherwise deal with any of Supplier’s rights and obligations under this Agreement without Moscord’s prior written consent.
4.9 WAIVERS. The failure of Moscord to insist on strict performance of any covenant or obligation under this Agreement, regardless of the length of time for which such failure continues, shall not be deemed a waiver of Moscord’s right to demand strict compliance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation under this Agreement shall constitute a consent or waiver by Moscord to or of any other breach or default in the performance of the same or any other obligation. Neither the course of conduct between Supplier and Moscord nor trade practice shall act to modify any provision of this Agreement.
4.10 AMENDMENT. This Agreement may not be altered, amended or modified in any way except by mutal agreement.
4.11 SEVERABILITY. If any provision of this Agreement is held to be invalid or unenforceable, all other provisions of this Agreement shall remain in full force and effect.
4.12 NOTICES. Any communication or notice to be made pursuant to this Agreement shall be provided by letter or by e-mail to the other Party.
Address: as provided in our notifications to you
Email: as provided in our notifications to you
Address: as provided in your account informationn
Email: as provided in your account information
4.13 This Agreement constitutes the final, complete and exclusive statement of the agreement of the Parties with respect to the subject matter hereof, and supersedes any and all other prior and contemporaneous agreements and understandings, both written and oral, between the Parties.
4.14 WARRANTIES. Without prejudice to any provision herein, Supplier hereby represents and warrants that:
(a) the Products will not infringe, misappropriate or otherwise violate any third party’s Proprietary Rights;
(b) the Products will conform to all the requirements of applicable Law, including all applicable health, safety and environmental regulations;
(c) where the Products are represented to be new, such Product will be new and unused;
(d) Supplier is authorized to lawfully provide such Products pursuant to applicable Laws, including immigration and work status Laws;
(e) the intellectual property of the relevant supplier offering any Product has validly been licensed to supplier in such a way as permits Moscord to use them on behalf of Supplier in the Trading Platform and that Supplier authorise Moscord to hold, reproduce, publish, adapt, transmit and disclose such content;
(f) the Products are merchantable, fit for customers’ purpose, and Supplier shall not take any action against Moscord on the basis that Moscord is liable to Customer for matters relating to the merchantability, fitness for purpose, or any other aspect relating to the quality of the Products, even if such purposes or such requirement has been communicated to Moscord;
(f) any detail or information relating to the Product is:
(i) accurate, complete, up-to-date and honest;
(ii) in a suitable format, provided using fully licensed software and free from harmful viruses;
(iii) not in breach of any applicable advertising, sales or marketing laws, regulations, as may be revised from time to time, or any other codes of advertising standards laid down on a statutory or a self-regulatory basis for the regulation of any relevant advertising industry;
(iv) not indecent, offensive, prejudicial, inflammatory, defamatory, blasphemous or racially abusive;
(v) not likely to expose Moscord or Customer to claims, result in Moscord’s or Customer’s prosecution, cause Moscord or Customer to infringe the legal rights of any third party, or cause Moscord or Customer embarrassment or distress of any kind;
(vi) not in breach of any other law, statute, statutory instrument or regulation in any relevant jurisdiction; and
(vii) not at any time or in any manner an infringement of any copyright, design right, database right, patent, trade mark, trade secret or any other intellectual property or proprietary rights (whether registered or unregistered) of any third party or any rights and forms of protection of a similar nature to any of the foregoing or having equivalent effect anywhere in the world.
4.15 INTELLECTUAL PROPERTY.
(a) Except as expressly authorised by Moscord in writing or to the extent that such activity is permitted by law Supplier shall not, and shall procure that no employee, agent, officer, contractor, sub-contractor, partner or any other representative:
(i) in any way tamper with, reverse engineer or otherwise copy, adapt, lease, lend, distribute, sell, sub-license, or otherwise transfer any the of the Trading Platform software or its functionality, all the intellectual property rights to which belong to Moscord or its licensors;
(ii) copy, sub-license, distribute sell, or publish any of the content of the Trading Platform;
(iii) interfere or attempt to interfere with the proper operation of the Trading Platform or the Services;
(iv) grant or allow access to the Trading Platform or Customer’s Services to any person other than a person employed by Customer who has been authorised by Customer to carry out Customer’s tasks pursuant to this Agreement and then only for as long as Moscord is satisfied that they are that person;
(v) use the Trading Platform, its Services or the Content other than as expressly permitted by this Agreement; and
(vi) resell any Service which Customer has purchased or is entitled to use.
(b) Supplier shall promptly on Moscord’s request provide Moscord with suitable and relevant documentary evidence that will satisfy Moscord of Supplier’s entitlement to exploit or otherwise make use of any of Supplier’s intellectual property in respect of the Products or to make enquiries of a third party as to Supplier’s entitlement to use such content (for example trademarks, logos etc).
4.16 INVESTIGATIONS. Supplier shall co-operate fully with investigations of violations of systems or security networks or security at other sites and with law enforcement authorities in the investigation of possible criminal violations. If Customer violates any systems and/or network security, Customer may also incur other criminal or civil liability.
4.17 DATA PROTECTION.
4.17.1 To the extent that Moscord provides any Personal Data to Supplier or Supplier processes any Personal Data on behalf of Moscord (referred to in this clause 4.18 collectively as “Moscord Data”), Supplier must comply with all applicable laws in all jurisdictions, including but not limited to the United Kingdom Data Protection Act 1998 and the Singapore Personal Data Protection Act (No.26 of 2012) (collectively referred to in this clause 5.6 as the “Relevant Data Protection Laws”), and the terms of this clause
4.18. For the purposes of this clause 4.18, “Personal Data” means: (a) any data, whether true or not, about an individual (whether living or deceased) who can be identified: (i) from that data, or (ii) from that data and other information to which the organisation has or is likely to have access; and (b) any data defined by any legislation, subsidiary legislation, rules, regulations, directives, guidelines, policies or any other legal or quasi-legal regulations (“Relevant Legislation” for purposes of this clause 5.6) to be personal data and subject to regulation by such Legislation.
4.17.2 LIMITED PURPOSES OBLIGATION. Supplier will Process Moscord Data solely and to the extent necessary for the purposes of providing the Products specified in this Agreement and pursuant to Moscord’s instructions. Supplier will not process Moscord Data for any other purpose unless authorised by Moscord in writing.
4.17.3 TRANSFER LIMITATION OBLIGATION. Supplier will not transfer or disclose Moscord Data to any third party or outside Singapore without Moscord’s express written permission, which may be given subject to such conditions as Moscord considers appropriate. In the event Supplier transfers Moscord Data to any party outside Singapore, the Supplier represents and warrants that Moscord Data so transferred will at all times be accorded a standard of protection at least comparable to the protection provided under the Relevant Data Protection Laws. Supplier warrants that it would comply with all data protection laws applicable to Supplier in relation to Supplier’s collection of personal data.
4.17.4 RETENTION LIMITATION OBLIGATION. Upon written request of Moscord or upon the termination or expiry of this Agreement, Supplier shall at the option of Moscord, return or destroy all Moscord Data in its possession or control as a result of this Agreement.
4.17.5 PROTECTION OBLIGATION. Supplier represents and warrants that reasonable security arrangements have been made to protect personal data in its possession or under its control in order to prevent unauthorised access, collection, use, disclosure, copying, modification, disposal or similar risks throughout the term of this Agreement.
4.17.6 BREACH. Supplier must immediately notify Moscord in writing of any breach of its obligations under this clause (including any unauthorised disclosure of Moscord Data by any third party) and fully co-operate with Moscord in relation to any such breach.
In the Agreement, the following terms and expressions shall have the meanings as set out below, always provided that, where the context of the Agreement so allows, words importing the singular shall include the plural and vice versa:
“ACCEPTEC PURCHASE ORDER” has the meaning ascribed to it in clause 3.1.
“ACCEPTED SERVICE REQUESTS” means collectively all Accepted Service Requests as defined by each of the respective Appendices (where executed by Supplier) and arising from the operation of the terms and conditions of the respective Appendices therefrom.
“BUSINESS DAY” shall mean any day on which commercial banks are generally open for business in Singapore.
“CONFIDENTIAL INFORMATION” means any business or Customer information provided to the Parties for the purposes of the order fulfilment services, whether or not stated to be confidential.
“CUSTOMER” has the meaning ascribed to it in clause 1.
“HANDLING FEE” has the meaning ascribed to it in clause 3.1.
“OFFER” has the meaning ascribed to it in clause 2.1.
“OFFERED PRODUCTS” has the meaning ascribed to it in clause 2.1.
“PRODUCTS” has the meaning ascribed to it in clause 2.1.
“SERVICE REQUEST MONTH” has the meaning ascribed to it in clause 3.2.
“SERVICES” has the meaning ascribed to it in clause 2.1.
“TRADING PLATFORM” has the meaning ascribed to it in clause 1.