Appendix 4 for supplier agreement
This Appendix sets out the applicable terms which apply to the Collection 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 therein referred to as the “Transacted Products”), Supplier may offer to Moscord a contract to perform Collection Services (as defined below) (“Fees and Services Order”) in respect of the Transacted Products (“Offer to Provide Collection Services”). Moscord may in its sole and absolute discretion accept or reject such Offer to Provide Collection Services (an accepted Offer to Provide Collection Services shall be hereinafter referred to as “Accepted Service Request”). For the avoidance of doubt, Moscord is not obliged to provide any Collection 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, “Collection Services” means the performance of invoice collection services in accordance with the terms as agreed by the Parties subject to 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.
2.3 Moscord may carry out the Collection Services using the mode and manner of collection customarily used by Moscord for the purpose of carrying out such Collection Service and may from time to time revise such mode and manner and/or establish such mode and manner exclusive to any particular Supplier and/or Customer. Except for the terms and conditions provided expressly herein in this Appendix, Moscord is not bound by any specific terms and conditions of such Accepted Service Request, including without limitation to collection instructions, whether or not such terms and conditions are: (a) implied or express; (b) stipulated to be accepted by virtue of Moscord’s acceptance of the Offer to Provide Collection Services; (c) stipulated to be accepted by certain conduct on Moscord’s part; or (d) otherwise stipulated to be binding on Moscord.
2.4 Notwithstanding and in addition to the above, any Party 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.
2.5 SUPPLIER`S OBLIGATIONS. In respect of all Collection Services provided by MOSCORD:
(a) Supplier shall ensure that all reasonably necessary documents required for the Collection Services including, but without limitation to, a Fees and Services Order (if necessary) and invoices issued to Customer in relation to Transacted Products (“Invoices Issued”) irrespective of such Invoices Issued being issued by Moscord or not, are in Moscord’s possession in a timely manner.
(b) Supplier may, from time to time, request in writing that Moscord send reminders (“Payment Reminders”) to Customer for the payment of the Invoices Issued (“Request for Reminders”). Such Request for Reminders may include terms on how such reminder is to be made by Moscord. Moscord may in its sole and absolute discretion accept or reject such Request for Reminders.
(c) Supplier hereby warrants that all Invoices Issued provided to Moscord are true, accurate, complete and free of omissions and misrepresentation. Moscord shall not be obliged but shall be entitled to investigate whether the Invoices Issued provided to Moscord are true, accurate, complete and free of omission 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 Moscord does not guarantee payment by Customer to Supplier pursuant to Invoices Issued. Moscord shall not be held liable for the failure to collect all monies due and owing to Supplier pursuant to the Invoices Issued or for any consequences arising therefrom.
3.6 For the avoidance of doubt, In the event Payment Reminders are agreed to be made, or requested of Moscord to be made, Moscord shall not be liable for any cost, expense, damages, claim or any other loss arising from the failure to make Payment Reminders or any other matter arising from such agreement or request.
3.7 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 3.7 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.
3.8 Moscord shall be liable only under the provisions of this Appendix.
3.9 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.
3.10 All additional costs caused by or incidental to a Force Majeure Event (referred to in this clause 3.10 as “Relevant Costs”) shall be borne by Supplier and Supplier shall upon demand by Moscord promptly indemnify Moscord against all such Relevant Costs.
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 Collection 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 Collection 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.
“COLLECTION SERVICES” has the meaning ascribed to it in clause 2.2.
“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.
“INVOICES ISSUED” has the meaning ascribed to it in clause 2.5.
“OFFER TO PROVIDE COLLECTION SERVICES” has the meaning ascribed to it in the clause 2.1.
“PAYMENT REMINDERS” has the meaning ascribed to it in clause 2.5.
“REQUEST FOR REMINDER” has the meaning ascribed to it in clause 2.5.
“TRANSACTED PRODUCT” has the meaning ascribed to it in the clause 2.1.