General Terms and Conditions of Sale
1. Acceptance and Scope of these terms
1.1 These general terms and conditions of sale (“GTC”) shall apply to all sales of goods and services by Merck KGaA (“Merck”) to a customer requiring to purchase such goods or services (“Purchaser”). While Clauses 1 to 11 shall, in principle, apply to all goods or services, Clause 12 includes clauses specific to certain products and services.
1.2 Any withstanding, amending or deviating terms and conditions of Purchaser shall not apply, even if Merck, knowing of such terms and conditions of Purchaser, does not object to them explicitly, and continues to deliver to Purchaser without any objection.
1.3 Any of the following shall constitute Purchaser's unqualified acceptance of these GTC: (i) written acknowledgement of these GTC; (ii) issuance or assignment of a purchase order for the product(s) or services thereunder; (iii) acceptance of any shipment or delivery of product(s) or provision of services thereunder; (iv) payment for any of the product(s); or (v) any other act or expression of acceptance by Purchaser.
1.4 These GTC shall only apply vis-à-vis commercial customers and with respect to commercial transactions.
1.5 These GTC shall apply to all transactions (including future ones) between Merck and Purchaser in the version current at the time of the conclusion of such transaction, even if their application has not been expressly agreed again.
1.6 Merck shall have the right to amend these GTC subject to prior written notification, including information on the right to object, of Purchaser and the envisaged amendments shall become effective unless Purchaser objects within two (2) weeks after receipt of such notice.
2. Conclusion of Contract, Orders
2.1 Unless otherwise agreed, any offers of Merck are subject to change.
2.2 Any binding contract on the sale of goods or services requires either (i) an offer of Merck explicitly marked as binding or (ii), upon any Purchaser’s order (oral or otherwise), an order confirmation of Merck in writing, and Purchaser not immediately objecting to such order confirmation. The content of the respective contractual relationship and the scope of delivery as laid down in any binding offer or order confirmation from Merck shall be legally binding.
2.3 Unless otherwise agreed, any advice given to Purchaser before placing the order shall be non-binding; the same shall apply to any specifications of samples and specimens. It remains up to Purchaser to satisfy itself that the goods are suitable for its purposes. Merck may, at Purchaser's request, provide technical assistance, advice and information with respect to the products, if and to the extent that such advice, assistance or information is conveniently available. It is expressly agreed, however, that Merck is under no obligation to provide such technical assistance and/or information. To the extent such technical assistance and/or information is provided to Purchaser, the disclaimers and limitations of liability contained herein shall be applicable.
2.4 If the order value is less than EUR 1,500.00 net (i.e. without turnover tax applicable according to legal provisions), Merck reserves the right to charge a flat-rate handling fee of EUR 150.00.
3. Deliveries, Returned Products
3.1 Merck’s obligation to deliver to Purchaser the product ordered is subject to Merck’s receiving correct and timely delivery itself from its suppliers. This condition shall only apply in case Merck is not responsible for non-delivery, in particular if it has placed a corresponding order with its suppliers. If delivery is not made by its supplier to Merck, (i) Merck shall notify Purchaser immediately, and (ii) Merck is entitled to withdraw from the contract, with any payments of Purchaser to be refunded immediately.
3.2 Delivery times given by Merck in offers and order confirmations are non-binding, except otherwise explicitly agreed. However, if binding delivery deadlines have been agreed, Merck’s obligation to comply with the agreed delivery period shall be subject to the prompt fulfillment of contractual duties on the part of Purchaser, in particular such duties as the payment of any agreed amounts and, if applicable, the provision of agreed security. If Purchaser fails to meet its contractual duties, Merck shall have the right to extend the delivery period. Merck reserves the defense of non-fulfillment of the contract.
3.3 Except otherwise explicitly agreed, if a product ordered has to be dispatched, this is carried out from Merck's respective warehouse on the account and at the risk of the purchaser. Merck is free to choose the carrier and the forwarding company and the means of transport. Merck reserves the right to choose the method of packaging. Partial deliveries (installments) are permissible and may be invoiced by Merck immediately. The risk of accidental loss of the product to be delivered passes from Merck to the purchaser on dispatch from the warehouse even if delivery is made carriage paid.
3.4 Risk is transferred upon dispatch of delivery. Merck is not obliged to insure the ordered product, or to have it insured, against damage in transit. Loss of or damage to the products, after the risk of such loss or damage has passed to Purchaser, does not discharge Purchaser from its obligation to make full payment of the purchase price. If the dispatch of the product ordered is delayed owing to circumstances for which Purchaser is responsible (including a lack of acceptance), the risk of accidental loss of the products to be delivered (also while in storage at Merck) passes to Purchaser from the time of the delay on. In case of such delays, any costs incurred by Merck due to the delay in delivery (in particular warehouse costs and charges) must be borne exclusively by Purchaser. In case of accidental loss, Merck is released from its performance obligation; however, Purchaser remains obliged to make full payment.
3.5 Purchaser may, notwithstanding any contractual or statutory rights, not cancel any binding order or return purchased products without Merck’s prior express written consent, such returns being subject to a restocking charge. Products subject to governmental regulations (e.g. European Medicine Agency, FDA) and/or processing requirements (e.g. cGMP) are not eligible for cancellation or return.
3.6 Merck is entitled to withdraw from or terminate the contract if it becomes apparent that Purchaser is not creditworthy, in particular in case of (i) a protest regarding a bill of exchange or a cheque occurs, (ii) payments by Purchaser stop, (iii) an unsuccessful enforcement attempt against Purchaser, or in case of an oath of disclosure; such event must not necessarily have occurred between Merck and Purchaser, or (iv) it becomes apparent that Purchaser has provided inaccurate information regarding its creditworthiness and this information is of considerable importance.
3.7 Irrespective of the reason for any return of products, any return must be coordinated with Merck prior to return, and all products to be returned must include Merck’s approved product return authorization form. Merck reserves to right to request a disposal instead of return. Title to the returned products, if already acquired by Purchaser, shall retransfer to Merck upon delivery of the products to Merck’s facilities. The products shall be returned in their original packaging with the original Merck label affixed, and unaltered in form and content. Where applicable, Purchaser agrees to provide Merck with interim product temperature and other relevant data on storage; Purchaser furthermore agrees to package products with proper refrigerant to maintain required temperatures during transit.
3.8 Merck may define certain products as Custom Made-To-Order ("CMO"). Purchaser must provide Merck with product specifications prior to the start of manufacturing a CMO product. Merck and Purchaser shall agree on all respective production and testing techniques prior to the start of manufacturing a CMO product. Purchaser must provide a purchase order detailing product and delivery schedule for reserved products. Purchaser shall purchase the entire lot of the CMO without regard to volume. Purchase orders for CMO products are not cancelable.
4. Prices, Taxes, Payment, delayed Payments
4.1 Unless otherwise specified in Merck’s order confirmation, the price for Purchaser’s order shall be charged in accordance with the applicable prices at the delivery date.
4.2 Unless otherwise specified in Merck’s order confirmation offer, if any, or its order confirmation, all prices are given in EUR.
4.3 Any tax, duty, custom or other fee of any nature imposed in connection with this transaction by any governmental or quasi-governmental authority shall be paid by Purchaser in addition to the price quoted or invoiced. In the event Merck is required to prepay any such tax, Purchaser shall fully reimburse such tax prepayment to Merck.
4.4 Unless otherwise specified in Merck’s order confirmation, the purchase price must be paid by Purchaser within 30 days from the invoice date without deduction to the bank account specified by Merck. Credit card payments are subject to acceptance by Merck and limited to a total order value equal to or less than ten thousand EUR (10,000 EUR), and deductions will be made at time of order placement by Purchaser.
4.5 In case Merck and Purchaser agree that payments are made by SEPA (Core and B2B) Direct Debit, the following shall apply: The pre-notification by Merck to Purchaser shall be made by way of the invoice. The 14-day pre-notification period before charging by SEPA Direct Debit is waived. The charging of the invoiced amount will take place at the due date as stated in the pre-notification.
4.6 In case of delay of payment by Purchaser Merck reserves the following rights, notwithstanding further statutory rights: (i) Merck may charge an interest on all amounts due and unpaid after due date at the maximum rate permitted by applicable law until payment is received, in any event at least 8% p.a. above the base interest rate of the Central European Bank, and (ii) Merck may terminate the order or suspend any further deliveries to Purchaser.
4.7 Any right of Purchaser to withhold payment or to set off any amounts due against counter-claims on his part, e.g. pricing or invoicing complaints, shall be explicitly excluded, unless such counterclaims are uncontested or a legal title exists.
4.8 In case Merck has a right to withdraw from the contract, all payment claims against Purchaser, regardless of their legal basis, are due for immediate payment.
5. Additional Obligations of Purchaser
5.1 Purchaser acknowledges that there are hazards associated with the use of some products, that it understands such hazards and that it is the responsibility of Purchaser to warn and protect all those exposed to such hazards.
5.2 Purchaser is also under the obligation to inform Merck immediately of any risks resulting from products it becomes aware of.
5.3 Purchaser shall at all times be solely responsible for: (i) obtaining any necessary intellectual property permission for the use of the product, (ii) compliance with any and all applicable regulatory requirements and generally accepted industry standards, (iii) conducting all necessary testing and verification, including for fitness for the intended purpose, prior to the use of product(s) purchased from Merck, (v) compliance with legal requirements in case products are to be disposed by Purchaser.
5.4 Purchaser shall indemnify and hold Merck, its corporate affiliates including Merck and any entity under majority control of Merck, agents, employees, and representatives, harmless from and against any and all claims, damages, losses, costs or expenses (including attorney’s fees) arising in connection with Purchaser’s sale or use of the products, resulting from Purchaser’s breach of the provisions and representations contained in these GTC, or arising from the negligence, recklessness or misconduct of Purchaser.
6.1 With respect to all products to be delivered, the Parties agree on the following material characteristics (Beschaffenheit) and scope of the warranties of Merck:
6.1.1 The products delivered by Merck correspond to the applicable published specifications set forth in the catalogue (electronic or otherwise), certificates provided with the products or on the label. In case of divergences between catalogue and the label, the information on the label is decisive. Merck reserves that specifications are subject to (i) customary divergences and (ii) other minor divergences that do not adversely affect the suitability of the products with regard to the intended or regular purpose.
6.1.2 The specifications only relate to the substances and values specified, and to pharmacopoeia data and information on E numbers. Statements with regard to suitability only apply when explicitly agreed by the parties.
6.1.3 Any data which is based on Merck’s testing procedures, may only be compared to testing following the same procedures. The product data (Stoffdaten) as listed, e.g. in the catalogue, product information, etc., is intended for information purposes only and does not represent a binding statement with respect to the characteristics of the products delivered; Merck may not be held liable with respect to the accuracy of the product data provided.
6.1.4 Merck does not assume any warranty for the use of the delivered products in pharmaceutical, cosmetic or food preparations, unless such use has specifically and expressly been approved by Merck. Merck makes no warranty of merchantability or of fitness for a particular purpose.
6.1.5 Unless otherwise expressly stated in the product data or product documentation sheets, Merck products have not been tested for safety or efficacy.
6.1.6 No agent, employee or other representative has the right to modify or expand Merck's standard warranty applicable to the products or services or to make any representations as to the products other than those set forth in Merck's applicable published specifications, and any such affirmation, representation or warranty, if made, should not be relied upon by Purchaser and shall not form a part of this contract.
6.2 Any warranty provided by Merck will not apply in the event of:
6.2.1 failure to install, use or maintain the products in accordance with any instructions, specifications, use statements or conditions of use made available by Merck in writing to Purchaser, such information to include but is not limited to product data, product information, limited use information, limited use label licenses;
6.2.2 use of products, that, according to documentation accompanying the product(s), are intended for research use only, for any other purpose, which includes but is not limited to, unauthorized commercial uses, in vitro diagnostic uses, ex vivo or in vivo therapeutic uses or any type of consumption by or application to humans or animals;
6.2.3 any installation, repairs, modifications, upgrades, maintenance or other servicing by a third party that is not approved by Merck;
6.2.4 normal wear and tear of the products, lack of proper maintenance or incorrect stocking conditions; or
6.2.5 use of the products beyond the shelf life or expiration date of the product as set forth in the applicable published specifications or labels of such products.
6.3 The Parties agree on the following duties of Purchaser in relation to inspections:
6.3.1 Purchaser shall inspect the delivered products immediately upon receipt and without delay notify Merck in writing or text format of any obvious defects or missing goods. Defects in the products which, despite immediate and proper examination by Purchaser, only become apparent at a later point in time must be notified to Merck in writing or in text format by Purchaser immediately upon discovery.
6.3.2 Complaints notified to forwarding agents or third parties do not constitute a notification in due form and shall therefore be deemed void.
6.3.3 In the event Purchaser claims non-conformance of a hazardous product, Merck shall have the right to inspect such products on Purchaser’s premises. As an alternative, the Parties may seek confirmation with respect to the non-conformance of the product in question by way of an analysis carried out by a third-party laboratory; such third-party laboratory must be acceptable to both parties and carry out the respective analysis within a reasonable time frame. If the results of the analysis confirm the non-conformance of the product, the respective costs shall be borne by Merck; if the analysis does not confirm non-conformance of the product, the costs for analysis shall be borne by Purchaser.
6.3.4 Merck shall assume no warranty or liability for any complaints of Purchaser that do not comply with the stipulations of this Clause 6.3.
6.4 Purchaser, in case of any complaint in accordance with Clause 6.3 about warranties, shall, subject to the limitation period in 6.5, have only the following rights for purchased products:
6.4.1 In the event of a material defect or a defect of title, Merck shall provide subsequent performance by remedying the defect or delivering a product without defects. Purchaser shall not have the right to request a specific type of subsequent performance.
6.4.2 If Purchaser has not yet effected payment (fully or in part) for the defective product, Merck may make subsequent performance subject to Purchaser effecting a part-payment of the purchase price proportional to the defect claimed.
6.4.3 Subsequent performance shall be deemed unsuccessful after the second unsuccessful attempt of Merck, unless otherwise apparent given the type of problem or defect or other circumstances.
6.4.4 Only in the event (i) Merck seriously and finally refuses subsequent performance, (ii) subsequent performance is unsuccessful, (iii) subsequent performance is not reasonable for Purchaser, or (iv) a reasonable deadline for subsequent performance set by Purchaser has not been met, shall Purchaser be entitled (a) to withdraw from the contract or (b) to reduce the purchase price accordingly. Subject to the limitations of Clause 7, Purchaser may furthermore demand compensation instead of performance.
6.5 The limitation period for claims for defect is 12 months from the transfer of risk, unless a breach of warranty is based on the willful misconduct of Merck. A shorter limitation period shall apply if and to the extent (i) agreed between the parties and permitted by applicable laws, or (ii) the shelf life or the expiration date of the product to be delivered – in accordance with the specifications or labels of such product – is shorter than 12 months.
7. Limitation of Liability of Merck
7.1 Merck shall not be liable for any claims that are not based on willful misconduct or negligent acts or breaches of duty on the part of its legal representatives, employees or vicarious agents. The same shall apply with respect to defects in a purchase item specified only by type.
7.2 Claims for damages against Merck shall, irrespective of legal grounds, in particular the breach of duties resulting from contractual obligations and tort, be excluded subject to the following stipulations:
7.2.1 Merck shall be liable for claims in connection with death, personal injury or illness resulting from a willful misconduct or negligent breach of duty on the part of one or more of its legal representatives, employees or vicarious agents in accordance with the statutory provisions of the Civil Code (BGB). Furthermore, Merck shall be liable for other claims for damages based on a willful misconduct or grossly negligent breach of duty on the part of one or more of its legal representatives, employees or vicarious agents.
7.2.2 Merck shall be liable in accordance with the legal provisions of the Civil Code (BGB) (i) to pay damages to or to compensate the Purchaser for any costs incurred in connection with claims resulting from the breach of a guarantee provided by Merck regarding the quality of the purchase item or (ii) for damages resulting from the negligent (but not grossly negligent) breach on the part of one or more of Merck’s legal representatives, employees or vicarious agents of such duties whose performance is a fundamental precondition for the proper fulfillment of the contract itself and on whose performance the contractual parties may regularly rely (cardinal duties).
7.2.3 In the event of gross negligence on the part of simple vicarious agents as well as in the cases specified in Clause 7.2.2 (ii), Purchaser’s claim for damages is limited to the foreseeable damage under the specific type of contract.
7.2.4 In the event of a delay in delivery due to minor negligence on the part of Merck, the damages for delay to be claimed by Purchaser shall amount to a maximum of 3% of the agreed net purchase price for each complete week of delivery, with on overall maximum of 15% of the agreed net purchase price. Purchaser’s right to claim damages in lieu of performance, if such right exists under statutory provisions and is covered by the above stipulations on liability, shall remain unaffected.
7.3 The exclusion of liability does not apply to claims of Purchaser under the German Product Liability Act.
7.4 The aforesaid stipulations shall not be construed as a change of the burden of proof to the disadvantage of Purchaser.
8. Force majeure
8.1 Neither Party shall be responsible and held liable for any delay or default in the performance of its obligations under their mutual contract to the extent and as long as this default is caused by an event beyond its control (force majeure). The same shall apply to contractual breaches on the part of suppliers caused by force majeure. An event of force majeure shall, without limitation, in particular include: (a) a state of war or civil war, declared or undeclared, (b) fire, (c) natural disasters like floods, storm, etc., (d) general shortage of raw materials or inability to obtain equipment or materials, (e) restrictions on energy consumption, (f) law-making or governmental decisions, embargos, export and import restrictions on shipping or delivery, (g) strikes, lockouts or labor disputes of any kind (whether relating to its own employees or others), (h) accidents, (i) sequestration, or (j) any production failure beyond reasonable control.
8.2 Force majeure shall not be an excuse to delay payments.
8.3 If either party is affected by one (or more) of the events described under 8.1 above, it shall promptly notify the other party thereof, stating the nature of the event, its estimated duration, and actions being taken to avoid or minimize its effects.
8.4 Neither party hereto shall be under an obligation to act upon any demand or request to bring to an end any strike or other concerted act of workmen.
8.5 If, at Purchaser’s request or for any reason for which Purchaser is responsible, the production or shipment of products is delayed, Merck may immediately invoice Purchaser for the products produced as well as costs and expenses incurred up to the time of the delay.
8.6 Each party shall have the right to cancel the contract by means of termination in writing or in text format if the performance thereof is prevented for more than six months according to Clause 8.1.
9. Retention of title
9.1 All products delivered by Merck shall remain Merck's property until the agreed purchase price has been fully paid and all claims arising from the mutual business relationship have been settled by Purchaser (extended retention of title). With respect to such retention of title the following shall apply:
9.1.1 Until such time as the title to the products transfers to Purchaser, Purchaser shall hold the products as Merck’s fiduciary agent and bailee, and shall keep the products separate from those of Purchaser and third parties, and properly stored, protected and insured (in an amount not less than the price payable to Merck therefor) and identified as Merck's property.
9.1.2 In case of a difficulty in identifying the products, all products of the same specification and not identified otherwise shall be deemed to be the products of Merck. In order to facilitate identification, Purchaser shall not remove or permit the removal of any distinctive marks, including trade marks, on the products.
9.1.3 Until such time as the title to the products transfers to Purchaser, Merck, upon a breach of duties on the part of Purchaser, in particular with respect to timely payments, shall be entitled at any time to request that Purchaser deliver up the products to Merck, and, if Purchaser fails to promptly comply with such request, to enter the premises of Purchaser or of any third party where the products are stored and repossess the products.
9.1.4 In the event any of Purchaser’s property is seized, Merck must be notified immediately by sending a copy of the enforcement order as well as a certified guarantee that the products seized are those delivered by Merck and subject to a retention of title.
9.2 Any disposal by Purchaser of products with a retention of title is only permitted in the ordinary course of business of Purchaser and subject to the following conditions:
9.2.1 Under no circumstances may the product be pledged or assigned to third parties as security in the ordinary course of business.
9.2.2 Where the product is sold in the ordinary course of business, the purchase price paid to Purchaser takes the place of the product. Purchaser hereby assigns to Merck all claims against its buyers or third parties resulting from any such sale. Purchaser is entitled to collect the claim provided it complies with its payment obligations vis-à-vis Merck. With view to the extended retention of title (assignment of respective future purchase price claims), any pledge/assignment to a third party, in particular a credit institution, is not permitted. Merck shall at any time be entitled to request the handing over of Purchaser’s sales documents, to examine such documents, and to inform Purchaser’s buyers of the preexisting retention of title.
9.2.3 If Purchaser’s receivables from a resale have been included in a current account, Purchaser hereby assigns its claims vis-à-vis its customer in connection with such current account to Merck. Such assignment shall cover the amount charged to Purchaser by Merck for the resale of the product subject to retention of title.
9.3 Any processing or modification of products by Purchaser prior to the transfer of title shall be deemed effected on behalf of Merck (it being understood that this does not give rise to any claims of Purchaser vis-à-vis Merck). If the products are processed together with other objects not belonging to Merck, Merck acquires a co-ownership in the resulting new objects in the proportion of the value of its products (final invoice total, including VAT) to the value of the other processed objects at the time of processing. In all other respects, the resulting new items shall be treated like the products delivered subject to retention of title.
9.4 If the products are inseparably mixed with other objects not belonging to Merck, Merck shall acquire co-ownership in the new objects in the proportion of the value of its product (final invoice total, including VAT) to the value of the other, intermixed objects at the time of mixing. If the products are mixed in such a way that the resulting Purchaser’s object is to be regarded as the main object, it shall be understood that Purchaser transfers to Merck co-ownership in such object on a pro-rata basis. Purchaser undertakes to safekeep the owned or co-owned objects on Merck’s behalf.
9.5 In the event the value of the securities according to the above clauses is going to exceed the amount of the receivables secured thereby by more than 10% in the foreseeable term, Purchaser shall be entitled to request that Merck release such securities whose value exceeds the above percentage.
9.6 The assertion of Merck’s rights under the retention of title shall not release Purchaser from its contractual obligations. The value of the product at the time of repossession shall merely be set off against Merck’s receivables vis-à-vis Purchaser. None of the stipulations contained in this Clause 9 shall be deemed to modify the provisions relating to the transfer of risk of damage to or loss of the products as set out in Clause 3 above.
9.7 Merck is entitled to withdraw from the contract, if a product subject to retention of title on the part of Merck is sold other than in the ordinary course of business of Purchaser, in particular if the product in question is pledged or assigned as security, unless Merck has expressly agreed to such sale in writing or in text format.
10. Compliance Requirements
10.1 Export Controls, Embargos
Purchaser acknowledges that the merchandise covered by this contract is subject to the export control laws (including in particular but not limited to embargos and economic sanctions) of the country from which shipment is made, as well as possibly those of the United States. Purchaser further acknowledges that, depending on the product, its country of destination, its designated end use, and the identity of the parties to the transaction, such laws may require Purchaser, either for the further transfer or reexport of the product being exported to it by Merck, or for the transfer of any item into which Purchaser may incorporate such product, to seek and obtain export licenses/authorizations issued pursuant to those laws.
Where Purchaser reexports the merchandise in question, Purchaser is the legally responsible party for determining its correct export classification, and for obtaining any necessary export licenses/authorizations. As a courtesy and without accepting any liability whatsoever, to aid Purchaser in ascertaining the export classification and the potential applicability of U.S. export control laws on its invoice, Merck shall provide Purchaser upon request with (i) what it believes is the correct classification, under local and U.S. laws, of the product being shipped and (ii) a statement indicating the country of origin of the product. Purchaser agrees to hold Merck harmless from any and all liabilities or costs incurred by Merck or its affiliates arising for any reason from or in connection with any export, import, regulatory, governmental or treaty violations in any jurisdiction, whether intentional or unintentional.
10.2 Pharmaceuticals, Cosmetics, Food
With respect to the production of pharmaceutical, cosmetic or food preparations, Purchaser shall be solely responsible for compliance with customary medical requirements, general manufacturing practice guidelines and applicable laws, orders and other provisions.
10.3 (Electronic) Waste
In the event Purchaser wishes to purchase electrical appliances from Merck, the following shall apply: Merck shall be responsible for the due and proper disposal of old electrical appliances that were put on the market after 13 August 2005 under the Merck name (brand) or were/are resold as such. For this purpose, collection of the old appliances will arranged by EcologyNet GmbH on behalf of Merck and, depending on the appliance and its condition, reused, treated or disposed of. General information about disposal is to be found at www.merckmillipore.com/weee. For any specific questions, please e-mail firstname.lastname@example.org or call Technical Service at 06196 494 140. Otherwise, Purchaser hereby agrees to bear any costs and perform all operations required in connection with the environmentally sound management of waste resulting from the products, in accordance with all provisions, including any special provisions, laid down by any national legislation, including legislation relating to electrical and electronic waste.
In the event Purchaser wishes to purchase chemicals from Merck, the following shall apply: Purchaser is aware of and agrees to comply with all its obligations under the REACH Regulation (EC) No. 1907/2006. Purchaser shall reimburse Merck for all expenses incurred by Merck in connection with Purchaser’s notification to Merck of any use pursuant to Article 37.2 of the REACH Regulation (EC) No. 1907/2006 that necessitates an update of the registration or the chemical safety report or triggers some other obligation under the REACH Regulation. Merck assumes no liability for delays in delivery arising in this context. If, for environmental or health protection reasons, Merck does not classify the use envisaged by Purchaser as an identified use, Merck may withdraw from the contract unless Purchaser informs Merck that it will abstain from the envisaged use.
10.5 Data Protection
10.6 Anti Corruption Laws, U.S. Foreign Corrupt Practices Act and UK Bribery Act
Purchaser acknowledges that: (a) Merck may be subject to the provisions of the Foreign Corrupt Practices Act of 1977 of the United States of America, 91 Statutes at Large, Sections 1495 et seq. (the “FCPA”); and, (b) Merck is subject to other bribery and corruption laws, including without limitation the UK Bribery Act and local laws for the jurisdictions covered thereunder. Under the FCPA it is unlawful to pay or to offer to pay anything of value to foreign government officials, government employees, political candidates, or political parties, or to persons or entities who will offer or give such payments to any of the foregoing, in order to obtain or retain business or to secure an improper commercial advantage. Purchaser further acknowledges that it is familiar with the provisions of the FCPA, the UK Bribery Act and applicable local bribery and corruption laws, and shall not take or permit any action that will either constitute a violation under, or cause Merck to be in violation of, the provisions of the FCPA, the UK Bribery Act or applicable local bribery and corruption law.
11.1 Governing Law
Unless explicitly otherwise agreed, any contract between Merck and Purchaser shall be subject to the laws of the Federal Republic of Germany, without giving effect to its rules on conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980 shall not apply.
11.2 Place of Performance
The place of performance for all claims resulting from the contract concluded between Purchaser and Merck is the registered office of Merck’s headquarters in Darmstadt.
11.3 Venue for Disputes
The venue for all disputes between the Parties shall be Darmstadt.
11.4 Entire Agreement
These GTC shall constitute the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the sale of Merck products and the provision of Merck services and supersedes all prior and contemporaneous understandings or agreements of the parties.
11.5 Modification, Written Form
Unless otherwise agreed in these GTC, any changes/amendments and/or additions to these GTC, including to this clause 11.5, must be agreed in writing between the contract parties in order to be effective.
Unless the text format is expressly admitted thereunder, any notices required or permitted to be given by either party to the other under these GTC shall be made in writing and shall be sent by prepaid recorded delivery, special delivery or registered mail to that other party at its registered office or principal place of business or such other address as indicated by it in connection with this provision.
If individual provisions of these GTC are or become fully or partially ineffective, the remaining provisions of the GTC shall not be affected thereby. This also applies if an unintended omission is found in the contract. A fully or partially ineffective provision shall be replaced or an unintended omission in the GTC shall be filled by an appropriate provision which, as far as is legally possible, most closely approximates to the original intention of the contractual parties or to what they would have intended according to the meaning and purpose of these GTC had they been aware of the ineffectiveness or omission of the provision(s) in question.
Orders are not assignable or transferable, in whole or in part, without the express written consent of Merck.
Any marketing, promotion or other publicity material, whether written or in electronic form, that refers to Merck, its affiliates, its products, or to these GTC must be approved by Merck prior to its use or release.
Purchaser shall not, without Merck’s written consent, disclose any documents, drawings, schematics, plans, designs, specifications, confidential information, know-how, discoveries, production methods and the like that are marked confidential, proprietary or the like (herein referred to as “technical information”) furnished to Purchaser by Merck, or on Merck’s behalf, for the performance of this agreement, to any person other than personnel of Purchaser. Purchaser shall take reasonable precautions against any such technical information being acquired by unauthorized persons and shall not employ any such technical information for its own use for any purpose whatsoever, including filing any patent applications disclosing or based on Merck’s technical information or publishing the technical information in any form, except in the performance of this agreement. Merck shall retain title to all such technical information and Purchaser shall, at Merck’s request or upon completion of this agreement, return or deliver all such tangible technical information to Merck. The term “technical information” as used herein shall not include information which is generally published or lawfully available to Purchaser from other sources or which was known to Purchaser prior to disclosure thereof to Purchaser by Merck or on Merck’s behalf.
11.11 Proprietary Rights
Merck, or its affiliates, is the owner of certain proprietary brand names, trademarks, trade names, logos and other intellectual property. Except as otherwise expressly permitted by Merck, no use of Merck’s or its affiliates’ brand names, trademarks, trade names, logos or other intellectual property is permitted, nor the adoption, use or registration of any words, phrases or symbols so closely resembling any of Merck's or its affiliates’ brand names, trademarks, trade names, logos or other intellectual property as to be apt to lead to confusion or uncertainty, or to impair or infringe the same in any manner, or to imply any endorsement by Merck of another entity’s products or services.
11.12 Waiver of Breach
The waiver by either party at any time to require performance by the other of any provision or part of any provision of these GTC shall not operate as a waiver of such provision at any other time.
11.13 Typographical Errors
Stenographic, clerical or computer errors on the face of any Merck invoice shall be subject to correction by Merck.
11.14 Independence of the Parties
Nothing in this agreement shall be deemed to constitute a partnership between the parties or to make either party the agent of the other party for any purpose. Furthermore, each of the parties shall remain solely responsible for its own acts, statements, engagements, performances, products (in the case of Merck subject to the other terms of the GTC in relation to the products), and personnel.
11.15 Third Parties
Nothing in this document is intended to create any rights in third parties against Merck.
12. Specific Provisions
12.1 Representations and Warranties for Services
If Purchaser is purchasing services from Merck, the following provisions shall exclusively apply in relation to representations and warranties for services and services only.
12.1.1 Unless otherwise agreed upon between the parties, services may be provided at the equipment site, Merck site or a Merck authorized third party site, as determined by Merck at its sole discretion. In the event that the purchased services shall be provided at a Merck or Merck authorized third party site, equipment will need to be returned to a Merck authorized site for repair or replacement, and Purchaser shall be responsible for all shipping and transportation costs, including any insurance costs. In the event that the purchased services are to be provided at the equipment site, Purchaser shall (i) make available to Merck a qualified employee who is familiar with the equipment and must be present during the call to assist as may be necessary in the performance of the services, and (ii) provide Merck service representatives with (a) access to its facilities to the extent necessary for such representatives to perform services, (b) a satisfactory and safe work area, and (c) adequate electrical power.
12.1.2 Merck’s obligation to provide purchased services and its Service Warranty (as defined below) shall not extend to any equipment failure or defect resulting directly or indirectly from the following:
(a) Non-compliance with specifications;
(b) Any misuse, theft, water flow-back, or neglect by Purchaser or its employees, contractors or agents or a wrongful act by such persons;
(c) Accidents or shipping related damage;
(d) Electrical failure unrelated to the product;
(e) Damage due to vandalism, explosion, flood or fire, weather or environmental conditions; and
(f) Any installation, repairs, modifications, upgrades, maintenance or other servicing by a third party that is not approved by Merck;
Such circumstances shall entitle Merck to charge Purchaser a reasonable compensation (if applicable) for any non-reimbursable travel costs, any working time of Merck’s employees, contractors or agents (at list rate), and for similar expenses.
12.1.3 Merck warrants that it shall provide services in a professional and workmanlike manner, consistent with average standards of workmanship and materials then prevailing in the trade, and by appropriately trained and qualified employees or third party representatives selected at its sole discretion (the “Service Warranty”). Merck makes no other express or implied warranty. In the case of a breach of the Service Warranty, the following shall apply:
(a) The parties agree that the primary remedy available under the agreement shall be repeat performance by Merck in due time of the portion of such services that constitutes or gives rise to the breach .
(b) If (i) it is not possible to repeat performance, (ii) Merck is failing to repeat the performance of such services within due time, or (iii) repeating the performance would result in unreasonable costs for Merck, the parties agree that the sole remedy shall, subject to the limitations under Clause 7, be Merck’s liability for damages or expenditure , including a refund to the Purchaser of sums paid for the portion of such services 7.
(c) For cases of Force Majeure, Clause 8 shall apply.
(d) The limitation period for this Service Warranty is 12 months, commencing at the end of the year in which Merck completes the respective (portion of) services and in which the Purchaser obtained knowledge of the circumstances giving rise to its claims or failed to obtain such knowledge due to gross negligence.
12.1.4 In the event that Purchaser is purchasing services on behalf of a third party, or in relation to products owned by a third party or located at the premises of a third party, Purchaser represents and warrants that it has proper legal authority to purchase such services with respect to such third party. Purchaser shall indemnify and hold Merck, its corporate affiliates including Merck and any entity under majority control of Merck, agents, employees, and representatives, harmless from and against any and all claims, damages, losses, costs or expenses (including attorney’s fees) caused by or resulting from any third party claim relating to the provision of any services by Merck.
12.2 Process Solutions Products and Systems
If Purchaser is purchasing hardware products and systems from Merck's “PROCESS SOLUTIONS BUSINESS UNIT” (the “Systems”), such purchase and sale shall be solely governed by the Engineered Products Terms and Conditions as referred to within the quotation for such Systems. In the event that the Engineered Products Terms and Conditions were not validly incorporated into the contractual relationship between the parties, the purchase and sale of such Systems shall be governed by these GTC.
12.3 Software License Terms
If Purchaser is licensing software from Merck, including software licensed in connection with the purchase of any products and any and all other software or firmware embedded in, loaded on, or otherwise associated with the purchased products (the software on such media and such other software or firmware being referred to hereinafter together as the “Software”), the following additional provisions shall apply.
12.3.1 Merck grants Purchaser the right and license to use the copy of the Software in object form that is on the readable computer media provided to Purchaser by Merck.
12.3.2 The Software and related copyrights are owned by Merck, by an affiliated company of Merck, and/or by certain suppliers of Merck and its affiliated companies, and title to the Software in general or respective copyrights shall not pass to Purchaser as a result of Purchaser’s use of the Software. The license rights granted herein may not be transferred to another party without the written permission of Merck, which may not be withheld if Purchaser sells its copy of the Software to a third party provided that (i) the Purchaser does not rent out the Software, (ii) Purchaser prior to selling the copy deletes any and all copies of the Software and (iii) the third party agrees to comply with the license terms.
12.3.3 The Software is protected by the respective national copyright laws and international treaties and Purchaser shall not copy it or allow it to be copied except that Purchaser has the right to (i) make such copies that are necessary for the use of the Software by Purchaser in accordance with its intended purpose, including for error correction, (ii) to duplicate the Software for backup or archival purposes and to transfer the Software to a backup computer in the event of computer malfunction, or (iii) observe, study or test the functioning of the Software in order to determine the ideas and principles which underlie any element of Software if Purchaser does so while performing any of the acts of loading, displaying, running, transmitting or storing the Software which he is entitled to do.
12.3.4 Purchaser shall (i) not to use the Software other than with the purchased products or for any purpose outside the scope of the application for which it is being provided, and (ii) not cause or permit the reverse engineering, disassembly, decompilation, modification or adaptation of the Software or the combination of the Software with any other software unless, but only to the extent, indispensable to obtain the information necessary to achieve the interoperability of the Software with other programs provided the information necessary to achieve interoperability has not previously been readily available to Purchaser, and (iii) not move the Software to any country in violation of United States Foreign Asset Control Regulations or other applicable import or export control regulations.
12.3.5 Purchaser further understands that its use of the Software shall be subject to the terms of any third party license agreements or notices that are provided to Purchaser by Merck and to the rights of any other third-party owners or providers of software or firmware included in the Software, and Purchaser shall comply with the terms of such third-party license agreements and rights provided by Merck in advance.
12.3.6 The Software is covered by the limited warranties applicable for the System set forth in Clause 11.2.4 (including all limitations of liability and disclaimers of warranties contained therein) and by no other warranties, express or implied.
12.3.7 Failure to comply with any of the terms of this subsection terminates Purchaser’s right to use the Software. Upon termination of such right, Purchaser must return the disk provided by Merck, and any and all copies thereof or of any other Software to Merck.
12.3.8 Any replacements, fixes or upgrades of the Software which Purchaser may hereafter receive from Merck or an affiliated company of Merck, shall be provided subject to the same restrictions and other provisions contained in this subsection, regardless of whether subsection or these terms and conditions are specifically referenced when Purchaser receives such replacement, fix or upgrade, unless such replacement, fix or upgrade is provided with a separate license agreement which by its terms specifically supersedes these terms and conditions. The warranty term for any upgrades shall be one (1) year from the date of its delivery to Purchaser. Any such replacements, fixes or upgrades shall be provided at prices and payment terms as agreed at the time they are provided.