Clause 1 Scope, divergent terms
1. The following General Terms of Sales ("general terms") apply to all sales of goods and services by Merck Limited ("Merck"), a company established and existing under the laws of Hong Kong, to a customer requiring to purchase such goods or services ("Purchaser"). These general terms apply to all business dealings (including future ones) between Merck and the purchaser in their version current at the time in question even if their application has not been expressly agreed again.
Other contrary terms of the purchaser or terms of the purchaser which diverge from the following general terms shall not apply even if Merck does not expressly reject them and makes delivery to the purchaser without reservation in the knowledge of contrary divergent terms of the purchaser.
Any of the following shall constitute Purchaser's unqualified acceptance of these general terms: (i) written acknowledgement of these general terms; (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.
2. Merck shall have the right to amend the current general terms subject to prior written notification of Purchaser and the envisaged amendments shall become effective unless Purchaser objects within two (2) weeks after receipt of such notice.
Clause 2 Prices
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.
Clause 3 Conclusion of Contract, Orders
1. Any contract or order on the sale of goods or services shall become effective when 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. 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.
3. At Purchaser's request, Merck may but not obliged to provide technical assistance, advice and information with respect to the products. To the extent such technical assistance and/or information is provided to Purchaser, the disclaimers and limitations of liability contained herein shall be applicable.
Clause 4 Deliveries, Returned Products
1. Merck shall notify Purchaser immediately if it has not received the correct and timely delivery from its supplier. Merck and Purchaser may then agree on a postponed delivery date or termination of the contract.
2. Partial deliveries are permissible and may be invoiced by Merck immediately.
3. 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 fulfilment 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 defence of non-fulfilment of the contract.
4. Information from Merck with regard to the size of packs or the type of packaging is non-binding. Merck itself chooses the packaging and the dispatch route according to requirements in question.
5. The risk of loss and damage of the product to be delivered passes from Merck to Purchaser upon delivery.
6. If the dispatch of the product ordered is delayed owing to circumstances for which Purchaser is responsible, the risk of loss and damage of the product to be delivered passes to Purchaser from the time of originally agreed delivery date. The costs incurred by Merck by the delay in delivery (in particular warehouse costs and charges) shall be borne exclusively by Purchaser if there is a delay caused by Purchaser.
7. Merck is not obliged to insure the product ordered, or to have it insured, against damage in transit.
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 cancellable.
9. Purchaser must coordinate with Merck prior to any return of product, and all products to be returned must include Merck's approved product return authorization form. Merck reserves the 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. 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.
Clause 5 Additional Obligations of Purchaser
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.
2. Purchaser is also under the obligation to inform Merck immediately of any specific risks resulting from products it becomes aware of.
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.
4. Purchaser shall indemnify and hold Merck and Merck's affiliates 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 general terms, or arising from the negligence, recklessness or misconduct of Purchaser. Merck's affiliates are referred to as any other legal entity that directly or indirectly controls, is controlled by, or is under common control with Merck, for as long as such control exists. "Control" refers to the ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding voting securities or the capital stock of, or other comparable equity or ownership interest.
Clause 6 Warranties
1. The products delivered by Merck correspond to the specifications as stated in the catalogue or on the label. In case of divergences, the information on the label is decisive. Statements with regard to suitability only apply when explicitly agreed by the parties.
2. The data provided is based on Merck's testing procedures. The product data listed in the catalogue 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.
3. Purchaser shall be solely responsible to comply with general medical regulations, GMP and applicable laws when the products delivered are used in pharmaceutical, cosmetic or food preparations. Unless such use has specifically and expressly been approved by Merck, Merck does not assume any warranty.
4. Unless otherwise expressly stated in the product data or product documentation sheets, Merck products have not been tested for safety or efficacy.
5. 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. Any warranty provided by Merck will not apply in the event of:
(i) 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;
(ii) 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;
(iii) any installation, repairs, modifications, upgrades, maintenance or other servicing by a third party that is not approved by Merck;
(iv) normal wear and tear of the products, lack of proper maintenance or incorrect stocking conditions; or
(v) 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.
7. Purchaser is obliged to examine the product delivered by Merck immediately on arrival and to notify Merck in writing immediately, no later than 15 days after receipt of the product, of any defects or divergences in the product delivered. Defects in the product which are only discernible later despite immediate and proper examination by Purchaser shall be notified to Merck in writing by Purchaser as soon as they are discovered, but no later than 15 days after discovery of the defect. Complaints notified to forwarding agents or third parties do not constitute a notification in due form and shall therefore be deemed void. In the event Purchaser claims non-conformance of a hazardous product, Merck shall have the right to inspect such products on Purchaser's premises. 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. Merck shall assume no warranty or liability for any complaints of Purchaser that do not comply with the stipulations of this Clause 6 (7).
8. Purchaser, in case of any complaint of products' defects, shall, subject to the limitation period in Clause 6 (9) and without prejudice to Clause 7, have only the following rights for purchased products:
(i) In the event of a material defect or a defect of title, Merck may, at sole discretion, choose to deliver a product without defects or remedy the defect.
(ii) Only when such replacement or remedy is not furnished by Merck within a reasonable period, Purchaser shall be entitled to withdraw from the contract or reduce the purchase price accordingly.
9. The limitation period for claims for defect is the longer of (i) 12 months from the transfer of risk or (ii) the mandatory period required by applicable laws. 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.
10. Products sourced by Merck from a third party (not being Merck's affiliate) for resale to the Purchaser shall carry only the warranty extended by the original manufacturer.
Clause 7 Compensation
1. Merck is not liable for any loss or damages suffered by Purchaser other than that caused directly and solely by Merck's gross negligence or wilful breach.
2. To the extent legally permissible, Merck's liability is limited in each case to compensation for foreseeable direct loss of Purchaser due to Merck's default. Merck's total liability under the contract is further limited to the purchase price. In no event shall Merck be liable for any consequential, special, indirect or punitive damages.
Clause 8 Payment, delayed Payments
1. The purchase price is due for payment within the terms stipulated in each contract or purchase order.
2. In case of delay in due payment, Merck may at its discretion charge interest on the amount outstanding from the moment of default. The interest rate shall be the base rate of the major banking institution of the country of the invoiced currency. Further, Merck may terminate the order or suspend any further deliveries to Purchaser.
3. A set off or retention of payment is only permitted if counterclaims exist which are either undisputed or adjudicated by final judgement.
Clause 9 Force majeure
1. Neither contractual party is liable for delay or non-performance of its contractual duties if such delay or non-performance is attributable to circumstances beyond its control or in particular to any of the following reasons: (i)Fire; (ii)Natural disasters; (iii)War; (iv)Attachment; (v)General shortage of raw materials; (vi)Restriction of energy consumption; (vii)Industrial disputes; (viii) law-making or governmental decisions, embargos, export and import restrictions on shipping or delivery; (ix)or if contractual breaches by suppliers are caused by any of the above.
2. Each party may terminate the contract or order in writing if the performance thereof is prevented for more than six months according to Clause 9(1).
Clause 10 Reservation of ownership
The products sold shall remain the property of Merck until the purchase price has been paid in full.
Clause 11 Compliance Requirements
1. Purchaser acknowledges that the merchandise covered by these general terms 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 re-export 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 re-exports the merchandise in question, Purchaser is the legally responsible party for determining its correct export classification, and for obtaining any necessary export licenses/authorizations.
2. 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 such envisaged use.
3. Purchaser acknowledges that: (i) Merck is an affiliate of a U.S. corporation, and, as such, 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, (ii) Merck is subject to other bribery and corruption laws, including without limitation the UK Bribery Act and local laws for the jurisdictions covered by these general terms. 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.
Clause 12 Termination
In the event that Purchaser becomes insolvent, is adjudged bankrupt or goes into receivership or liquidation or any petition is presented against Purchaser for bankruptcy, receivership or liquidation, Merck is entitled without prejudice to Merck's other rights, to immediately suspend or terminate the contract.
Clause 13 Place of payment
Regardless of the place of delivery of products, the place of payment shall be Merck's place of business.
Clause 14 Jurisdiction
The Parties hereby submit to the exclusive jurisdiction of the Hong Kong courts for the determination of any dispute arising in connection with this contract.
Clause 15 Applicable Law
The contractual relationship shall be governed by the laws of the Hong Kong Special Administrative Region of the People's Republic of China, to the exclusion of the UN Convention on Contracts for the International Sale of Goods.
Clause 16 Miscellaneous
1. If individual provisions of these general terms are or become fully or partially ineffective, the remaining provisions of these general terms shall not be affected thereby. A fully or partially ineffective provision shall be replaced in these general terms 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 general terms had they been aware of the ineffectiveness of the provision(s) in question.
2. Orders are not assignable or transferable, in whole or in part, without the express written consent of Merck.
3. 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, to any third party. 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 orders covered by the general terms. Merck shall retain title to all such technical information and Purchaser shall, at Merck's request or upon completion of orders covered by the general terms, 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.
4. 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.
5. The waiver by either party at any time to require performance by the other of any provision or part of any provision of these general terms shall not operate as a waiver of such provision at any other time.
Clause 17 Specific Provisions
1. If Purchaser is purchasing services from Merck, the following provisions shall exclusively apply in relation to representations and warranties for services and services only.
Unless otherwise agreed upon between the parties, services may be provided at the equipment site, Merck site or a Merck authorized third party site. 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 access to its facilities to the extent necessary for such representatives to perform services, a satisfactory and safe work area, and adequate electrical power.
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"). The Service Warranty shall expire after 90 days upon completion of such service. In the case of a breach of the Service Warranty, the parties agree that the sole remedy available under these general terms shall be repeat performance by Merck of the portion of such services that constitutes or gives rise to the breach. When Merck reasonably concludes that it is not possible to repeat performance, the parties agree that the sole remedy shall be a refund to the Purchaser of sums paid for the portion of such services. Merck makes no other express or implied warranty. Clause 7 and 9 of these general terms shall apply.
Merck's obligation to provide purchased services and its Service Warranty shall not extend to any equipment failure or defect resulting directly or indirectly from the following: (i) Non-compliance with specifications; (ii)Any misuse, theft, water flow-back, or neglect or a wrongful act by Purchaser or its employees; (iii)Accidents or shipping related damage; (iv) Electrical failure unrelated to the product; (v)Damage due to vandalism, explosion, flood or fire, weather or environmental conditions; and (vi)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.
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, Merck's affiliates, 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.
2. 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 general terms.
Clause 18 System Software License Clause
By turning on the power of the hardware product or System that Purchaser has purchased from Merck or from an affiliated company of Merck, Purchaser is agreeing to be bound by the terms of this System Software License Clause ("License Clause"). This License Clause is the entire and exclusive expression of the agreement between Purchaser and Merck for use of the Software (as defined below) and supersedes all prior communications with Purchaser, relating to the Software, both oral and written. Furthermore, this License Clause and its terms supersede any terms and conditions relating to the sale of the System to Purchaser, to the extent that such terms and conditions relate to the Software.
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 accompanying this License Clause and to use any and all other software or firmware embedded in, loaded on, or otherwise associated with the System (the software on such media and such other software or firmware being referred to hereinafter together as the "Software").
2. The Software, as well as related versions of which is 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 or related copyrights shall not pass to Purchaser as a result of use of the Software. The license rights granted to Purchaser may not be transferred to another party without the written permission of Merck.
3. The Software is protected by the copyright laws of the United States, China, other countries and international treaties, and Purchaser shall not copy it or allow it to be copied except that Purchaser has the right to duplicate the Software for backup or archival purposes and to transfer the Software to a backup computer in the event of computer malfunction.
4. Purchaser further agrees (i) not to use the Software other than with the System or for any purpose outside the scope of the application for which it is being provided, and (ii) not to cause or permit the reverse engineering, disassembly, decompilation, modification or adaptation of the Software or the combination of the Software with any other software, and (iii) not to move the Software to any country in violation of United States Foreign Asset Control Regulations or other applicable import or export control regulations.
5. Purchaser further understands that the use of the Software shall be subject to the terms of any third party license agreements or notices that are attached as exhibits to this License Clause or that otherwise may be provided to Purchaser, and to the rights of any other third-party owners or providers of software or firmware included in the Software, and Purchaser agrees to comply with the terms of such third-party license agreements and rights.
6. The Software is covered by the limited warranties applicable for the System (including all limitations of liability and disclaimers of warranties contained therein) and by no other warranties, express or implied.
7. Failure to comply with any of the terms of this License Clause terminates this License Clause and Purchaser's right to use the Software. Upon termination of this License Clause Purchaser must return the disk accompanying this License Clause, and any and all copies thereof or of any other Software to Merck.
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 License Clause, regardless of whether this License Clause is specifically referenced when Purchaser receives such replacement, fix or upgrade, unless such replacement, fix or upgrade is provided with a separate license clause or agreement which by its terms specifically supersedes this License Clause. 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.