Appendix 2 for supplier agreement
Last updated: March 1, 2018
This Appendix sets out the applicable terms which apply to the Order Fulfilment 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 Trading Platform Agreement.
2.1 Moscord may from time to time receive orders from Customer to purchase Products from Supplier (“Purchase Order”) and in such event Moscord may forward such Purchase Order to Supplier. 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 shall be deemed to offer to Moscord a contract to perform Order Fulfilment Services (as defined below) in respect of the Transacted Products (“Offer to Provide Order Fulfilment Services”). Moscord may in its sole and absolute discretion accept or reject such Offer to Provide Order Fulfilment Services (an accepted Offer to Provide Order Fulfilment Services shall be hereinafter referred to as “Accepted Service Request”). For the avoidance of doubt, Moscord is not obliged to provide any Order Fulfilment 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, “Order Fulfilment Services” means the performance of logistics services in accordance with the Schedule hereto 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 Order Fulfilment Services using the mode, route and manner of transport customarily used by the service providers with which Moscord contracts for the purpose of carrying out such Order Fulfilment Service. 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 delivery 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 Order Fulfilment 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 SUPPLIERS’S OBLIGATIONS. In respect of all Order Fulfilment Services provided by Moscord:
(a) Supplier shall ensure that the Products are presented punctually at the agreed place and time.
(b) Supplier shall ensure that all reasonably necessary documents required for receipt of Products, for dispatch of Products, as well as all reasonably necessary instructions for the timely, smooth and successful delivery of services by Moscord, are in Moscord’s possession in a timely manner.
(c) Supplier shall comply with the Shipping Policies. The Shipping Policies may be amended from time to time without Supplier’s consent but with prior written notification to Supplier.
3.1 This clause shall apply any customs documentation (“Customs Documentation”) is required to be prepared and submitted to any customs authority (“Customs Authority”) in the course of the performance of the Order Fulfilment Services.
3.2 Where any Customs Documentation is deemed by Moscord to be reasonably required to be submitted to any Customs Authority, Moscord is authorised to make such submission to such Customs Authority for and on behalf of Supplier. Supplier shall submit to Moscord, on a timely basis, without any request being made, all specifications, data, description and all reasonably necessary information requested by Moscord to make such submission. Supplier shall submit, on a timely basis, to Moscord all specifications, data, description and all reasonably necessary information requested by Moscord.
3.3 Supplier hereby warrants that all specifications, data, description and information provided to Moscord is true, accurate, complete and free of omissions and misrepresentation. Moscord shall not be obliged but shall be entitled to investigate whether the specifications, data, description and information provided are true, accurate, complete and free of omissions and misrepresentation and its quality thereof.
4. 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:
4.1 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 nature of the Products and the packaging thereof; (b) the incorrectness, inaccuracy or incompleteness of instructions and information provided by Supplier; (c) the failure to tender the Products or not doing so in time at the agreed place and time; (d) the failure to supply, or to supply on a timely basis, documents and/or instructions; and (e) fault or negligence in general on the part of Supplier and the latter’s servants and third parties called in or engaged by him.
4.2 Any liability of Moscord in respect of any matter arising from this Appendix shall be limited to the damages which has been proved by the Supplier in a court of competent jurisdiction to be due solely to Moscord arising out of, relating to, or occurring in connection with, the Offer Fulfilment Services.
4.3 Further to Clause 4.2, 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.
4.4 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 4.4 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.
4.5 Moscord shall be liable only under the provisions of this Appendix and for the avoidance of doubt not as a carrier, even where all-in or fixed rates, as the case may be, have been agreed.
4.6 In the event of the occurrence of a Force Majeure Event: (a) this Appendix shall remain in force and any obligations of 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.
4.7 Moscord does not guarantee delivery schedule or deadline. Supplier acknowledges that the seaport environment may be subject to security or terrorism alert lockdowns and exercises and logistics and other service providers within such environment may be required to comply with safety protocols by military and para-military agents with no notice.
4.8 If the carriers refuse to sign for or otherwise acknowledge the number or the weight of pieces or items etc., Moscord shall not be liable for any consequences arising therefrom.
4.9 In the event of loading and / or unloading time being inadequate, all costs resulting therefrom, such as demurrage, etc., shall be borne by Supplier, even if the bill of lading from which the additional costs arise has been accepted.
4.10 If the carriers refuse to sign for or otherwise acknowledge the number or the weight of pieces or items etc., Moscord shall not be liable for any consequences arising therefrom.
4.11 In the event of loading and / or unloading time being inadequate, regardless of the cause or fault, all costs resulting therefrom, such as demurrage, etc., shall be borne by Supplier, even if Moscord has accepted the bill of lading from which the additional costs arise without protestation.
5.1 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 Shipping Policies; (ii) the Schedule (iii) this Appendix; and (iv) the Accepted Service Request.
5.2 DISCLAIMERS, INDEMNIFICATION, ETC.
5.2.1 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.
5.2.2 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.
5.2.3 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.
5.2.4 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 DELIVERY OF THE PRODUCTS FROM PORTHUB LOCATION TO DELIVERY DESTINATION OR VESSEL, AS THE CASE MAY BE, (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 S$5,000, WHICHEVER TO LOWER AMOUNT.
5.2.5 THE LIMITATIONS SET FORTH IN SUB-CLAUSES TO 5.2.2 TO 5.2.4 WILL APPLY TO ALL CLAIMS AND CAUSES OF ACTION, REGARDLESS OF WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHER THEORY.
5.2.6 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 Appendix expires or is earlier terminated. 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.
5.3 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
5.4 SURVIVAL. Clauses 1, 3, 5 and 6 of this Appendix 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 REQUEST” has the meaning ascribed to it in clause 2.1.
“CUSTOMS AUTHORITY” has the meaning ascribed to it in clause 3.1.
“CUSTOMS DOCUMENTATION” has the meaning ascribed to it in clause 3.1.
“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 ORDER FULFILMENT SERVICES” has the meaning ascribed to it in clause 2.1.
“ORDER FULFILMENT SERVICES” has the meaning ascribed to it in clause 2.2.
“PURCHASE ORDER” has the meaning ascribed to it in clause 2.1.
“TRANSACTED PRODUCTS” has the meaning ascribed to it in clause 2.1.