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TERMS AND CONDITIONS OF BUSINESS

1) DEFINITIONS
a) “ACL” means the Australian Consumer Law;
b) "Customer" means the buyer of the goods;
c) “Goods" means the products and services offered by Merck.
d) "Merck" means Merck Pty Ltd, ABN 80 001 239 818 of 207 Colchester Road, Kilsyth 3137;
e) “PPSA” means the Personal Property Securities Act 2009 (Cth);
f) “Terms” means these terms and conditions and any agreement entered into for the provision of Goods by Merck to the Customer including but not limited to any credit application made by the Customer to Merck.

2) ACCEPTANCE OF ORDERS
Merck reserves the right to accept or reject any order for Goods and may withhold Goods contracted to be sold if there are reasonable grounds to doubt the solvency of the Customer. In such circumstances the Customer agrees that Merck may withhold Goods without repudiating the contract and without incurring any liability whatsoever.

3) TERMS OF SALE
These conditions apply to the Goods sold by Merck. They may only be waived or varied in writing signed by Merck and shall prevail over all conditions of the Customer's order or other documents to the extent of any inconsistency.

4) PRICES & GST
a) Unless otherwise stated, all prices quoted are exclusive of GST.
b) Prices are recommended prices only at the date of quotation and may be subject to change without notice. They may also vary due to fluctuations in exchange rates, rates of freight, insurance, customs duties, shipping expenses, sorting and stacking charges, cartage, and cost of materials and production.

5) DELIVERY
a) Merck will make all reasonable efforts to have the Goods delivered to the Customer on the date agreed between the parties as the delivery date.  However, Merck will not be liable for late or non-delivery or any loss, damage or delay occasioned to the Customer or its customers arising from late or non-delivery or late installation. The Customer acknowledges that delivery does not include unloading from the carrier upon arrival at the place of delivery.
b) Merck reserves the right to make a reasonable charge for storage if delivery instructions are not provided by the Customer within fourteen days of a request by Merck, or if the Customer requires delivery to be postponed or is unable to receive the Goods for any reason. Merck may store the Goods at its own or other premises at the Customer's risk.
c) Packaging materials and method of consignment shall be at Merck's discretion.  A special charge may be made to meet the cost of the Customer's specific packaging or consignment requirements.

6) PAYMENT
Unless agreed otherwise, if the Customer has an approved credit account, payment must be made in full within 30 days of the date of invoice. Payments via credit card may attract an administration fee.  Interest may be charged on all overdue accounts at the cash rate of the Reserve Bank of Australia (RBA) plus 4%. Merck reserves the right to withhold deliveries when accounts become overdue.

7) RIGHTS IN RELATION TO GOODS
a) Merck reserves the following rights in relation to the Goods until all accounts owed by the Customer to Merck are fully paid:
i)  title and property in the Goods;
ii) to enter the Customer's premises (or the premises of any associated company or agent where the Goods are located) and for this purpose the Customer irrevocably licenses Merck to enter such premises without liability for trespass or any resulting damage and retake possession of the Goods and indemnifies Merck from and against all costs, claims, demands or actions by any party arising from such action;
iii) to keep or resell any Goods repossessed pursuant to (ii) above.

b) In addition to any rights Merck may have under Chapter 4 of the PPSA, until payment of all and any amounts owing by the Customer to MERCK are received:
i)  the Customer will keep the goods separate, where possible, until Merck has received payment in full and any other obligations owed by the Customer to Merck are met;
ii) Merck may give notice to the Customer to return the goods to Merck.  Upon receipt of such or upon such notice being given, any rights of the Customer to obtain ownership or any other interest in the goods will cease;
iii) the Customer will not encumber or charge the Goods or register any Security Interest or permit any other person to register a Security Interest in the Goods or grant or otherwise give any interest in the Goods whilst the Goods remain the property of Merck;
iv) if there is any inconsistency between Merck rights under this clause 7 and its rights under Chapter 4 of the PPSA, this clause 7 prevails; and
v) any difference or loss incurred by Merck in respect of the value of any re-possessed Goods will be recoverable by Merck from the Customer in addition to any amounts owing by the Customer to  Merck;
vi) If the Goods are resold, or products manufactured using the Goods are sold, the Customer must hold such the proceeds of any such sale of the Goods as represents the invoice price of the Goods on trust for Merck in a separate, identifiable account as the beneficial property of Merck, however failure to do so will not affect the Customer's obligation to deal with the proceeds as trustee. 
vii) The Customer must pay such of the proceeds of the sale of the Goods to Merck on request. Notwithstanding this clause, Merck shall be entitled to maintain an action against the Customer for the price of the Goods.

8) PERSONAL PROPERTIES SECURITIES ACT
a) The Customer acknowledges and agrees that these Terms are the accepted and adopted security agreement between the parties. Unless otherwise stated, a term contained in these Terms that is defined in the PPSA (but not otherwise defined in this Agreement) has the meaning given to it in the PPSA.
b) The Customer acknowledges and agrees that these Terms create and that Merck has a Security Interest for the purposes of the PPSA in all Goods and any proceeds previously supplied or that will be supplied in the future by Merck to the Customer, including but not limited to the lease of any Goods by Merck to the Customer.
c) The Customer acknowledges and agrees that this Security Interest is registrable in the Personal Property Securities Register and this Security Interest secures all moneys owing by the Customer to Merck under these Terms or otherwise.
d) The Customer grants to Merck where and when applicable, a Purchase Money Security Interest (PMSI) to the extent that it secures payment of the amounts owing in relation to the relevant Goods in accordance with, and to the extent prescribed by, section 14 of the PPSA.
e) The Customer acknowledges and agrees the Security Interest is a continuing and subsisting interest in the Goods with priority over any registered or unregistered general (or other) Security Interest and any unsecured creditor.
f) The Customer acknowledges that the Security Interest over the Goods or their proceeds arising under this clause 7 is a PMSI under the PPSA to the extent that it secures payment of the amounts owing in relation to the Goods.
g) The Customer will do everything reasonably required of it by Merck to enable Merck to register its Security Interest with the priority Merck requires and to maintain those registrations including:
i) signing any documents and/or providing any information which Merck may reasonably require to register a financing statement or a financing change statement in relation to a Security Interest; or
ii) correcting a defect in a statement referred to in clause 8 (g)(i).
h) The Security Interests arising under this clause 8 will be perfected by Merck prior to or when the Customer obtains possession of the Goods and the parties confirm they have not agreed that any Security Interest arising under this clause 8 attaches at any later time.
i) Merck does not need to give the Customer any notice under the PPSA (including notice of the financing statement or verification statement) unless the notice is required by the PPSA and that requirement cannot be excluded.
j) If Chapter 4 of the PPSA would otherwise apply to the enforcement of the Security Interests created under these Terms, the Buyer agrees that sections 95, 96, 120, 121(4), 123, 125, 128, 129, 130, 132(3)(d), 132(4), 134(1), 135, 142 and 143 of the PPSA will not apply to the enforcement of the Security Interest(s).
k) The Customer agrees not to disclose to an 'Interested person' (as defined in section 275(9) of the PPSA) or any other person, any Information of the kind described in section 275(1) of the PPSA including the security agreement between Merck and the Customer.
l) The Customer agrees to keep and maintain all Goods free of any charge, lien, or Security Interest except as created under these Terms and not otherwise to deal with the Goods in a way that will, or may, prejudice the rights of Merck under this Agreement or the PPSA.
m) The Customer irrevocably grants to Merck the right to enter any premises or property of the Customer without notice, and without being in any way liable to the Customer or any other person, if Merck has cause to exercise any of its rights under the PPSA, and the Customer agrees to indemnify Merck against any such liability.
n) The Customer must notify Merck immediately in writing if the Customer changes its name and address for service, contact details or if there are any changes to data required to register a financing statement under the PPSA in respect of these Terms.

9) FORCE MAJEURE
If Merck is prevented from or delayed in performing any of its obligations under the contract by force majeure, including but not limited to strikes, lock outs or other industrial action, whether or not caused by or involving employees of Merck, then Merck may give notice in writing to the Customer of the circumstances constituting force majeure and the obligation which is delayed or prevented from being performed and shall then be excused from compliance with such obligation for as long as force majeure continues.

10) LIABILITY
a) Except as specifically set out in these Terms, or contained in any warranty statement provided with the Goods, any term, condition, warranty or consumer guarantee in respect of the Goods, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded to the maximum extent permitted by law.
b) Repair or replacement of the Goods, or part of the Goods or the re-supply of services or payment for the re-supply of services is the absolute limit of Merck’s liability howsoever arising under or in connection with the sale, use of, storage or any other dealings with the Goods by the Customer or any third party to the maximum extent permitted by law.
c) Merck is not liable for:
i) any indirect or consequential losses or expenses suffered by the Customer or any third party, however caused, including but not limited to loss of turnover, profits, business or goodwill or any liability to any other party;
ii) any loss or damage suffered by the Customer or any third party where Merck fails meet any delivery date or cancels or suspends the supply of Goods; and
iii) any loss or damage suffered by the Customer in relation to any services provided by the Customer's servants or agents.
d) Nothing in the Terms is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation applicable to the sale of Goods which cannot be so excluded, restricted or modified.
e) The Customer acknowledges that it has the sole responsibility of satisfying itself that the Goods are suitable for the Customer's use or contemplated use.
f) Subject to the ACL,

11) WARRANTY
a) Merck offers a limited warranty for its Goods against defects and workmanship and materials, subject to the limitations and exclusions set out in this warranty which is given subject to and in addition to other rights and remedies the Customer has under any law in relation to the goods to which this warranty relates, including but not limited to the rights provided by the ACL.  This   warranty does not limit or restrict the Customer’s rights.
b) Where the ACL applies, the Goods come with guarantees that cannot be excluded under the ACL.  The Customer is entitled to replacement or a refund for a major failure and for compensation for any other foreseeable loss or damage.  The Customer is also entitled to have the Goods repaired or replaced if the Goods fail to be of acceptable quality and the failure does not amount to a major failure.
c) Merck warrants that, subject to the exclusions and limitations set out in these Terms, the Goods provided by Merck will be free from defects in materials and workmanship under normal usage ("Warranty"), for the period of twelve (12) months of the date that the Goods are delivered by Merck ("Warranty Period").  Products manufactured or supplied by any other party will be subject to their own manufacturer’s warranties and warranty periods.
d) To the maximum extent permitted by law, this Warranty does not cover
i) products packaged or labelled by someone other than Merck or its authorised agents;
ii) products not used in compliance with the specifications or Goods not cared for or used, serviced or maintained in accordance with  the product manuals, instructions or training provided by Merck;
iii) defects due to misuse, alteration, unauthorised repair or negligent handling, or defects due to lack of care neglect or accident by the Customer, or servant or agent of the Customer, including but not limited to storage or handling of the Goods;
iv) personal injury, property damage, consequential or economic loss, however caused;
v) modification, repair or alteration of the Goods by someone other than Merck; or
vi) Goods that have been subject to abnormal conditions, whether of temperature, water, humidity, pressure, stress or similar.
e) To the maximum extent permitted by law and other than the Warranty stated above, Merck makes no representations or warranties of any kind whatsoever express or implied in respect of the Goods.
f) All warranty claims must be made within the timeframe stipulated in this warranty for the Warranty to be honoured by Merck.
g) If a defect appears in the Goods before the end of the Warranty Period and Merck finds the Goods to be defective, Merck will, in its sole discretion, either:
i) replace or repair the Goods or the defective part of the Goods free of charge;
ii) cause the Goods or the defective part of the Goods to be repaired or replaced free of charge; or
iii) refund the purchase price of the Goods to the Customer.
h) If a fault covered by this Warranty occurs in relation to Goods, the Customer must notify Merck in writing to  orders.aus@merckgroup.com or by telephone by calling 1800 335 571 to advise of the fault, including details of the nature of the warranty claim and the purchase order and invoice number as well as item, batch and/or serial number.  Merck will contact the Customer and, where possible, assess the claim over the telephone.
i) Provided that a claim is made within the Warranty Period and the Warranty applies, all direct costs associated with the replacement of the Goods will be borne by Merck.  Merck may, in its sole discretion choose to have the Goods returned  to Merck for any warranty investigation or replacement or repair, with the costs of transport each way to be borne by Merck for valid warranty claims.
j) Where a valid warranty claim is made by the Customer in accordance with these Terms and it is accepted by Merck the cost of repaired or replaced Goods and any freight will be borne by Merck. 
k) Where Merck incurs costs in investigating a warranty claim that is ultimately deemed by Merck not to be valid, the Customer shall be liable to reimburse Merck for all freight and other incidental costs incurred by Merck in its investigations of the warranty claim by the Customer.
l) The Warranty is limited to defects in the materials or workmanship of the Goods and does not cover expendable or ancillary items, consumable items or the replacement of Goods due to fair wear and tear, abuse or misuse.
m) Subject to the ACL, Merck is not liable for, and the Customer releases Merck from, any claims in respect of faulty or defective design of any Goods supplied by Merck where the Customer has provided the design of the Goods to Merck.  Merck's liability under these circumstances is limited strictly to the replacement of defective parts in accordance with the Warranty in this clause 11.
n) This warranty is in addition to any statutory warranties available to the Customer that cannot be excluded.

12) INDEMNITY
The Customer shall comply with all instructions of Merck in relation to the handling, storage, sale and use of the Goods.  The Customer shall keep Merck indemnified against all losses, claims, damages or liabilities of whatsoever nature including, without limitation, claims for death, personal injury, damage to property and consequential loss, which arise in connection with a breach of these conditions or negligence of the Customer or its employees, agents and duly authorised officers to the maximum extent permitted by law.

13) WAIVER
A failure by Merck to insist upon strict performance of any of terms and/or conditions will not be deemed to be a waiver of its rights under this contract or a waiver of any subsequent breach by the Customer of any condition.

14) INDUSTRIAL PROPERTY RIGHTS
The Customer shall not alter, remove or in any way tamper with any of the trade or other marks or numbers of Merck attached to or placed upon the Goods, their packaging or any promotional or marketing material.

15) CLAIMS
In the event that that any prices/charges made by Merck are in dispute, the Customer must notify Merck of such disputed prices/charges within 30 days from date of invoice. Claims disputing receipt of Goods must also be made within 30 days of date of invoice.

16) RETURNS AND DEFECTIVE GOODS
a) Subject to the ACL, Merck will not be liable for any defects, shortages, damage or non-compliance with the specifications in respect of the Goods unless:
i) the Customer notifies Merck with full details within fourteen (14) days of delivery specifying the shortage or defect; and
ii) Merck is given the opportunity to inspect the Goods and investigate the complaint before any further dealing.
b) If the Customer fails to give the notice as required in clause 16(a), it is deemed to have accepted the Goods and will be bound to pay for them.
c) Where Merck accepts any claim for defects, shortages, damage or non-compliance with these Terms, Merck may, in its sole discretion, replace the Goods or refund the price of the Goods.
d) Merck will not, under any circumstances, accept Goods for return that:
i) are damaged due to not being stored or handled in accordance with Merk’s instructions or any legislative requirements; or
ii) have been altered in any way without authorisation from Merck.
e) Subject to the ACL, the Customer must obtain Merck’s prior written approval for the return of Goods and the customer will pay all freight charges associated with the return of the Goods unless they are returning the Goods due to an error or fault on the part of Merck.  In this case Merck will organise the return transportation of the Goods and bear the cost of same, in accordance with its warranty obligations under clause 11 above. 
f) The Customer must return the Goods in new condition together with proof of purchase and original packaging, where possible.
g) Merck may, in its absolute discretion, accept the return of any Goods for credit within 14 days of delivery or otherwise within a reasonable time from delivery. This timeframe may vary from product to product and may depend on the type of product purchased and the price paid.
h) When the Customer notifies Merck they are returning the Goods, the Goods become Merck’s property.  All Goods returned must be in a reasonable and clean condition, subject to the notified defect.
i) Subject to the ACL, Merck may in its sole discretion accept or reject Goods for return or credit where the Goods have been made or supplied to a special order or to the Customers’ specifications or in accordance with the Customer’s design.
 
17) RESTOCKING FEE / CANCELLATION OR ORDERS
a) Subject to agreement, Merck will accept the return of all Goods that are held in stock in Australia within 30 days of date of invoice. The Customer will cover all outgoing and incoming freight charges, and will incur a restocking fee of the higher of $100 or 30% of the value of the Goods.
b) Subject to the ACL, all Goods that are not held in stock in Australia, known as back-to-back Goods, cannot be cancelled once they have been confirmed as shipped from their point of departure. Once delivered, Merck cannot accept their return.

18) REGULATORY AFFAIRS
It is the Customer's responsibility to observe all applicable health, safety and other regulations and to take appropriate steps in relation to the storage, handling, sale and use of the Goods. Where information is supplied to the Customer about potential hazards relating to the Goods, the Customer must bring such information to the attention of its employees, agents, sub-contractors, visitors and customers.

19) APPLICABLE LAW
This contract is made in Victoria, being the place from which this document is issued, and the parties agree that all disputes between them shall be governed by the laws of Victoria, Australia.

© Merck KGaA, Darmstadt, Germany, 2014


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