Appendix 3 for supplier agreement
Last updated: March 1, 2018
This Appendix sets out the applicable terms which apply to the Invoicing Services to be provided by Moscord. All terms herein which are not defined in this Appendix shall have the definition attributed to them in the Supplier Agreement.
2.1 In the event Supplier concludes a binding contract between Supplier and Customer consisting part or all of Products set out in the Purchase Order (such binding contract referred to herein as the “Accepted Purchase Order” and the Products referred to therein as the “Transacted Products”), Supplier may offer to Moscord a contract to perform Invoicing Services (as defined below) (“Fees and Services Order”) in respect of the Transacted Products (“Offer to Provide Invoicing Services”). Moscord may in its sole and absolute discretion accept or reject such Offer to Provide Invoicing Services (an accepted Offer to Provide Invoicing Services shall be hereinafter referred to as “Accepted Service Request”). For the avoidance of doubt, Moscord is not obliged to provide any Invoicing Services in respect of any items which are not purchased by Customer from Supplier pursuant to an Accepted Purchase Order.
2.2 For the purposes of this Appendix, “Invoicing Services” means the invoicing services in respect of Transacted Products by Moscord on behalf of Supplier, to Customer, from time to time, and in accordance with the provisions of this Appendix. The terms and conditions of this Appendix shall be deemed to be incorporated into an Accepted Service Request. Any invoice issued by Moscord pursuant to the Invoicing Services shall be referred to in this Appendix as an “Invoice Issued”.
2.3 Notwithstanding and in addition to the above, Moscord may without notice terminate with immediate effect any Accepted Service Requests where any of the following events have occurred: (a) petition for the insolvency or bankruptcy (as the case may be) of either Party being made; (b) issuance of a court order ordering any Party to be placed under receivership; (c) issuance of a court order placing any Party in liquidation; (d) petition or court process for any arrangement between any Party and its debtors and/or creditors being made.
2.4 SUPPLIER’S OBLIGATIONSs. In respect of all Invoicing Services provided by MOSCORD:
(a) Supplier shall ensure that all reasonably necessary documents required for the Invoicing Services including, but without limitation to, the Transacted Product Details (as defined below) and the Fees and Service Order (if necessary), are submitted to Moscord in a timely manner.
(b) Supplier hereby warrants that all Transacted Product Details are true, accurate, complete and free of omissions and misrepresentation. Moscord shall not be obliged but shall be entitled to investigate whether the Transacted Product Details provided are true, accurate, complete and free of omissions and misrepresentation.
3. LIABILITY, RISK, ETC.
Notwithstanding any provision of this Appendix and without prejudice to the generality of any provision of this Appendix, and in particular, any indemnity and disclaimers herein, the Parties agree as follows:
3.1 Supplier shall be liable to Moscord for all costs, expenses, damages, claims or any other losses reasonably resulting from the subject matter of this Appendix including without limitation to losses reasonably resulting from: (a) the incorrectness, inaccuracy or incompleteness of instructions and information provided by Supplier; (b) the failure to supply, or to supply on a timely basis, documents and/or instructions; and (c) fault or negligence in general on the part of Supplier and the latter’s servants and third parties called in or engaged by him.
3.2 All services provided by Moscord shall be solely at Supplier’s expense and risk.
3.3 Any liability of Moscord (if any) shall be limited to only that which has been proved by Supplier to be due solely to Moscord’s gross negligence and willful misconduct.
3.4 Further to Clause 3.3, any liability of Moscord for each Accepted Service Request shall in all cases not exceed the amount actually paid by Supplier to Moscord for such Accepted Service Request or USD 500, whichever the lower amount.
3.5 In the event Moscord reasonably determines that there may be the potential of any cost, expense, damages, claim or any other loss (referred to in this clause 3.5 as “Relevant Losses”) to be suffered by Supplier, Moscord may (but is not obliged to) take all reasonable steps to mitigate the Relevant Losses including prosecuting claims against the party that is liable for such Relevant Losses and Supplier shall upon demand by Moscord promptly indemnify Moscord against all costs, damages or expenses, whatsoever, including counsel fees and other professional fees, which Moscord may sustain or incur in respect of such steps taken.
3.6 Moscord shall be liable only under the provisions of this Appendix.
3.7 In the event of the occurrence of a Force Majeure Event: (a) this Appendix shall remain in force and any obligations of Moscord shall, however, be suspended for the duration of the Force Majeure Event plus a reasonable amount of time after the expiry of the Force Majeure Event as may be determined in the sole and absolute discretion of Moscord; (b) without prejudice to the provisions of sub-clause (a), Moscord may opt to with immediate effect terminate, either partially or fully, any portion or all of the obligations in respect of any Accepted Service Request and/or this Appendix.
3.8 All additional costs caused by or incidental to a Force Majeure Event (referred to in this clause 3.8 as “Relevant Costs”) shall be borne by Supplier and Supplier shall upon demand by Moscord promptly indemnify Moscord against all such Relevant Costs.
3.9 Moscord does not guarantee payment by Customer to Supplier in respect of any Invoice Issued.
3.10 For the avoidance of doubt, in the event Customer refuses to settle any Invoice Issued, Moscord shall not be liable for any consequences arising therefrom.
4.1 In the event of ambiguity, conflict or inconsistency among the documents comprising this Appendix, 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 Invoicing Policies; (ii) this Appendix; and (iii) the Accepted Service Request.
4.2 DISCLAIMERS, INDEMNIFICATION, ETC.
4.2.1 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 Appendix. 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 Appendix.
4.2.2 ALL SERVICES PROVIDED BY MOSCORD TO SUPPLIER PURSUANT TO THIS APPENDIX 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.
4.2.3 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.
4.2.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS APPENDIX, MOSCORD’S TOTAL LIABILITY TO SUPPLIER IN THE AGGREGATE FOR THE ENTIRE DURATION FOR WHICH THIS APPENDIX IS EFFECTIVE (AND REGARDLESS OF WHETHER THE CLAIMS ARE BROUGHT DURING OR AFTER THE DURATION OF THIS APPENDIX OR AFTER TERMINATION OF THIS APPENDIX) WITH RESPECT TO ALL CLAIMS ARISING FROM OR RELATED TO THE SUBJECT MATTER OF THIS APPENDIX (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 500, WHICHEVER THE LOWER AMOUNT.
4.2.5 THE LIMITATIONS SET FORTH IN SUB-CLAUSES TO 4.2.2 TO 4.2.4 WILL APPLY TO ALL CLAIMS AND CAUSES OF ACTION, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY.
4.2.6 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 Appendix more than one (1) year after the date this Invoicing 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 Appendix are bases of this Appendix materially bargained for by Moscord and Supplier.
4.3 NOTICES. Any communication or notice to be made pursuant to this Appendix 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 information
Email: as provided in your account information
4.4 SURVIVAL. Clauses 1, 5 and 6 will survive the termination of this Appendix. In addition, all provisions of this Appendix that can only be given proper effect if they survive the termination of this Appendix will survive the termination of this Appendix. This Appendix will be valid as to any obligation incurred prior to termination of this Appendix, including any fees or any other amounts owed by Supplier.
In this Appendix, the following terms and expressions shall have the meanings as set out below, always provided that, where the context of the Appendix so allows, words importing the singular shall include the plural and vice versa:
“ACCEPTED SERVICE REQUESTS” has the meaning ascribed to it in clause 2.1.
“FEES AND SERVICES ORDER” has the meaning ascribed to it in clause 2.1.
“FORCE MAJEURE EVENT” means an event or circumstance that is beyond a Party’s control, including acts of God, war, labor strike, terrorist act, fire, flood, earthquake, health epidemic, any law, Order, regulation or other action of any governing authority or agency thereof, or failure of the Internet.
“OFFER TO PROVIDE COLLECTION SERVICES” has the meaning ascribed to it in the clause 2.1.
“INVOICES ISSUED” has the meaning ascribed to it in the clause 2.2.1