General Terms and Conditions of Sale
Version 4.0 dated 30/09/2025
- Applicability, Acceptance and Scope of These Terms
- Conclusion of Agreement and Orders
- Delivery and Performance
- Use of Products
- Inspection and Rejection of Nonconforming Products
- Price and Payment
- Software and Use Documents Licence Terms
- Limited Warranties
- Returns
- Limitation of Liability and Indemnification
- Retention of Title
- Specific Provisions
- Compliance Requirements
- Termination
- Confidential Information
- Force Majeure
- Miscellaneous
1. Applicability, Acceptance and Scope of These Terms
1.1 These general terms and conditions of sale and deliveries (these “Terms”) shall apply to any Sales Documents accompanying or referencing these Terms, and Supplemental Terms, if any, comprise the entire agreement (the “Agreement”) between Merck Sdn Bhd or an affiliate thereof (“Seller”) and the purchaser (“Purchaser”) with respect to the purchase and sale of products (“Products”) and services ("Services") indicated on Sales Documents. “Sales Documents” means any document, print or digital, provided by Seller in the purchase and sale process, including but not limited to quotations, invoices, documents confirming, acknowledging or accepting an order (“Order Confirmation”) and shipping documents. If the parties have signed a contract applicable to the sale of certain Products and/or Services, the terms of such contract shall prevail to the extent they are inconsistent with these Terms. This Terms shall, in principle, apply to all Products or Services, however, Clause 7 and 12 includes clauses specific to certain Products and Services.
1.2 Certain Products and Services may be subject to additional terms (“Supplemental Terms”) not contained herein, which, when applicable, may be referenced on or provided with Sales Documents or Seller’s websites or provided by Seller upon request.
1.3 These Terms prevail over any Purchaser’s terms regardless of when such terms are provided. Fulfilment of Purchaser's order does not constitute acceptance of any of Purchaser's terms and does not serve to modify or amend these Terms.
1.4 Any of the following shall constitute Purchaser's unqualified acceptance of these Terms: (i) written acknowledgement of these 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.
1.5 These Terms shall only apply vis-à-vis commercial customers and with respect to commercial transactions.
1.6 These Terms shall apply to all transactions (including future ones) between Seller 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.
1.7 Seller shall have the right to amend this Terms without prior written notification to Purchaser and the envisaged amendments shall become effectiveautomatically.
1.8 The Agreement between Seller and Purchaser is created when Seller confirms, acknowledges or begins to fulfil Purchaser’s order. Purchaser may not modify or cancel the Agreement without Seller’s express written consent. Modification or cancellation may require payment by Purchaser of certain costs incurred by Seller.
2. Conclusion of Agreement and Orders
2.1 Unless otherwise agreed, any offers of Seller may subject to change.
2.2 Any binding Agreement on the sale of Products or Services requires either (i) an offer of Seller explicitly marked as binding, accepted by Purchaser or (ii), upon any Purchaser’s order (oral or otherwise), an Order Confirmation of Seller in writing. In case of a purchase via a website, the Purchaser will make a binding order by double clicking the button “purchase” or “accept”, etc., and Merck may accept the Purchaser’s order either in writing or electronically (in particular by email Order Confirmation). The confirmation of the receipt of Purchaser’s order by Seller shall constitute no binding acceptance of Purchaser’s order by Seller. The content of the respective contractual relationship and the scope of delivery as laid down in any binding order or Order Confirmation from Seller shall be legally binding between the parties.
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 Products are suitable for its purposes. Seller 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 Seller 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 Prices quoted exclude installation, testing, commissioning, all certification, all third party testing, piping & plumbing works unless otherwise stated. Exclude all coring, penetrating, drilling, sealing, civil, mechanical & electrical works unless otherwise stated.
2.5 Purchaser shall provide Seller at no cost all utility services required such as water supply, drain point and power supply and when necessary, special handling equipment for installation.
2.6 Seller shall not be liable for delays not due to its Products.
2.7 Replacement of expendables may vary with feed water, usage and other factors. Seller shall be responsible for maintenance and replacement of parts after shipment from Merck.
2.8 System warranty period is 12 (twelve) months against manufacturer’s defects from date of shipping from Seller. Warranty does not cover damages due to poor maintenance and operation practices.
2.9 Commissioning of system excludes sending samples to accredited laboratories.
3.1 Merck’s contractual obligation to deliver to Purchaser the Products (hereinafter also called “Product Ordered”) is subject to Seller’s receiving correct and timely delivery itself from its suppliers. This condition shall only apply in case Seller 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 Seller, (i) Seller shall notify Purchaser immediately, and (ii) Seller is entitled to withdraw from the Agreement, with any payments of Purchaser to be refunded immediately.
3.2 Delivery times given by Seller in offers and order confirmations are non-binding and time of delivery is not of the essence, except otherwise explicitly agreed. Seller shall not be liable for any delays, loss or damage in transit. However, if binding delivery deadlines have been agreed, Seller’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, Seller shall have the right to extend the delivery period. Seller reserves the defense of non-fulfillment of the Agreement.
3.3 Unless otherwise agreed in writing, Products are shipped using Seller's standard packaging and shipping methods, for which fees may apply. Unless otherwise agreed upon in writing by the parties or set forth on an Order Confirmation, delivery of Products shall be made CPT Purchaser’s Ship-To Address (INCOTERMS® 2020). Freight costs shall be prepaid by Seller and added to its invoice to Purchaser. Title to Products (excluding any Software) passes to Purchaser upon arrival at the destination.
3.4 Seller may, in its sole discretion, make partial shipments of Products and invoice immediately therefor. Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfilment of Purchaser's order.
3.5 With respect to certain Products, Seller reserves the right to (a) require the purchase of entire lots; and (b) allocate supply, to the extent such allocation is deemed necessary by Seller, among any or all customers (including Seller’s affiliates and distributors) at its sole discretion, without liability for any failure of performance which may result therefrom.
3.6 Seller shall determine the location of Services. If Services are provided at Seller’s site or a third-party site authorised by Seller, Purchaser shall be responsible for any shipping and transportation costs, including any insurance costs, if applicable. If Services are provided at Purchaser’s site or another site under Purchaser’s control, Purchaser shall (a) cooperate with Seller in all matters relating to the provision of Services and provide access to premises and facilities as may reasonably be necessary or requested, including a safe work environment; (b) promptly provide any requested materials, direction, information, approvals, authorisations, or decisions (“Information”); and (c) ensure that such Information is materially complete and accurate.
3.7 Except otherwise explicitly agreed, if a Product Ordered must be dispatched, this is carried out from Seller's respective warehouse on the account and at the risk of the Purchaser. Seller is free to choose the carrier and the forwarding company and the means of transport. Seller reserves the right to choose the method of packaging. Unless otherwise agreed, re-usable packaging identified as such, remains the property of Seller and shall be returned promptly to Seller, in any event within 90 (ninety) days upon delivery; the Purchaser shall be liable for loss or damages in accordance with the statutory provisions. The risk of accidental loss of the Product to be delivered passes from Seller to the Purchaser on dispatch from the warehouse even if delivery is made carriage paid. 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.
3.8 Risk is transferred upon dispatch of Products. Seller is not obliged to insure the Product Ordered, 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 Seller due to the delay in delivery (in particular warehouse costs and charges) must be borne exclusively by Purchaser. In case of accidental loss, Seller is released from its performance obligation; however, Purchaser remains obliged to make full payment.
3.9 Purchaser may, notwithstanding any contractual or statutory rights, not cancel any binding order or return purchased Products without Seller’s prior express written consent. Products subject to governmental regulations and/or processing requirements are not eligible for any cancellation or return.
3.10 Seller is entitled to withdraw from or terminate the Agreement 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 Seller and Purchaser, or (iv) it becomes apparent that Purchaser has provided inaccurate information regarding its creditworthiness and this information is of considerable importance.
3.11 Seller may define certain Products as Custom Made-To-Order ("CMO"). Purchaser must provide Seller with product specifications prior to the start of manufacturing a CMO product. Seller 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.
3.12 Seller reserves the right to charge the amounts stated in the following circumstances:
3.12.1 Orders: a delivery charge of MYR 100.00 per delivery/trip will be imposed for deliveries less than MYR 500.00
3.12.2 Return of Products: should Purchaser request that delivered products are to be taken back by Seller, a minimal sum of MYR 100.00 per trip will be charged.
3.12.3 Batch Selection: MYR 30.00 will be charged per order for every batch selection; and
3.12.4 Printing of Certificates of Analysis (COA) and Safety Data Sheets (SDS): Purchasers who request for printed COAs or SDSs will be charged MYR 10.00 per order for all printed COAs and SDSs requested in respect of that particular order.
3.12.5 Modification of Transportation Method: An additional delivery fee per unit or kilogram shall be assessed if the Purchaser requests a modification of the transportation method from sea freight to air freight.
3.12.6 Supplemental Services: Additional fees shall apply for any requests for special packaging, temperature control, or services that exceed standard operational procedures.
3.12.7 Cancellation Fee: A cancellation fee shall be imposed if the Purchaser cancels an order after it has been agreed and confirmed by Seller, with the amount determined based on the stage of processing at the time of cancellation.
3.12.8 Storage Fee: In instances where the delivery schedule extends beyond 12 (twelve) months from the issuance date of the Blanket Purchase Order (BPO), Seller reserves the right to impose storage fees, calculated based on the quantity of goods remaining in its warehouse.
4.1 Purchaser shall (a) comply with all instructions, limitations, specifications, use statements or conditions of use made available by Seller, including but not limited to Product data, Product information, safety data sheets, limited use information and labelling (“Use Documents”), and (b) properly test, use, manufacture and market Products and/or materials produced with Products.
4.2 Purchaser acknowledges that Products are not tested for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise explicitly stated in Use Documents.
4.3 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.
4.4 Purchaser shall inform Seller immediately of any risks resulting from Products it becomes aware of.
4.5 Purchaser shall at all times be solely responsible for: (i) obtaining any necessary intellectual property permission for the use of the Product, (ii) conducting all necessary testing and verification, including for fitness for the intended purpose, prior to the use of Product(s) purchased from Seller, (iii) compliance with legal requirements in case products are to be disposed by Purchaser.
4.6 If the applicable Use Documents, including but not limited to the limited use label licence, indicate that the Products are offered and sold for research purposes only, Purchaser has no express or implied authorisation from Seller to use such Products for any other purpose, including, without limitation, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes. Purchaser shall not market, distribute, resell or export Products for any purpose, unless otherwise agreed by Seller in writing.
4.7 Purchaser (i) uses the Products at its own risk, and (ii) shall indemnify and hold Seller and its affiliates, including its 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 Terms, or arising from the default of Purchaser.
5. Inspection and Rejection of Nonconforming Products
5.1 Purchaser shall inspect Products no later than five (5) days after receipt ("Inspection Period"). Purchaser will be deemed to have accepted the received Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period, furnishing evidence or other documentation if required. "Nonconforming Products" means only those delivered Products, or quantity thereof, which are different than identified in the Order Confirmation.
5.2 If notified in accordance with Clause 5.1, Seller shall, in its sole discretion, (a) replace such Nonconforming Products with conforming Products, or (b) credit the price for such Nonconforming Products or, in the event of partial delivery, adjust the invoice to reflect the actual quantity delivered. Seller reserves the right to inspect Products. Purchaser acknowledges and agrees that the remedies set forth herein are the exclusive remedies for delivery of Nonconforming Products.
5.3 Any Product returns, if authorised, shall be handled in accordance with Clause 9.
6.1 Purchaser shall purchase Products and Services from Seller at the prices offered by Seller, including but not limited to prices in a valid quotation or prices on a published price list valid as of date of the applicable Order Confirmation. If there is a price increase before Products are shipped, then the Agreement shall be construed as if the increased prices were originally inserted therein, and Purchaser shall be invoiced by Seller in accordance therewith.
6.2 Unless otherwise agreed, the price for Purchaser’s order shall be charged in accordance with the applicable prices at the delivery date.
6.3 Unless otherwise agreed, all prices are given in Malaysian Ringgit ("MYR").
6.4 All prices are exclusive of all sales, use, and excise taxes, duties, customs, tariffs, and any other similar taxes or charges of any kind imposed by any governmental authority or quasi-governmental authority on any amounts payable by Purchaser. Purchaser shall be responsible for all such taxes and charges in addition to the price quoted or invoiced; provided, however, that Purchaser shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personal or real property, or other assets. In the event Seller is required to prepay any such taxes and charges, Purchaser shall fully reimburse such taxes and charges prepayment to Seller.
6.5 Purchaser shall pay all invoiced amounts within thirty (30) days from date of invoice to the specified bank account or as otherwise instructed.
6.6 Unless otherwise specified in Seller’s Order Confirmation, the purchase price must be paid by Purchaser in Cash Before Delivery (“CBD”) from the invoice date without deduction to the bank account specified by Seller. Credit card payments are subject to acceptance by Seller and limited to a total order value equal to or less than ten thousand Euros (10,000 EUR), forty-seven thousand three hundred and ninety Malaysian Ringgit (MYR 47,390.00) and deductions will be made at time of order placement by Purchaser.
6.7 In case Seller and Purchaser agree that payments are made by direct debit, the following shall apply: The pre-notification by Seller to Purchaser shall be made by way of the invoice. The 14 (fourteen) days pre-notification period before charging by the direct debit instrument is waived. The charging of the invoiced amount will take place at the due date as stated in the pre-notification.
6.8 In case of all late of payments by Purchaser, Seller reserves the following rights, notwithstanding further statutory rights: (i) Seller may charge Purchaser with an interest rate of ten percent (10%) per annum or the highest rate permissible under applicable law, calculated daily and compounded monthly. Purchaser shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law, Seller may, without notice to Purchaser, terminate the order or suspend or delay or postpone further delivery of Products and/or performance of Services and may, at its option, change the terms of payment with respect to any undelivered Products and/or unperformed Services.
6.9 Purchaser shall not withhold payment of any amounts due and payable hereunder by reason of any set-off of any claim or dispute with Seller.
6.10 In case Seller has a right to withdraw from the Agreement, all payment claims against Purchaser, regardless of their legal basis, are due for immediate payment.
7. Software and Use Documents Licence Terms
7.1 If any software or Use Documents is provided or licensed by Seller to Purchaser, including software provided together or in connection with any Products or Services (“Software”), the terms provided with such Software or Use Documents shall apply. If there are no terms provided therewith, these Terms, including this Clause 7, shall apply.
7.2 Seller grants Purchaser the right and licence to use the copy of the Software and the Use documents as provided by Seller. The licence rights granted herein may not be transferred to another party unless such party agrees in writing to comply with these Terms. In any case, Software provided together or in connection with any Products or Services shall not be transferred separately from such Products or Services.
7.3 The Software, Use Documents and related intellectual property rights including, without limitation, copyrights are owned by Seller, an affiliate, and/or certain suppliers of Seller or its affiliates, and title to the Software, Use Documents or respective intellectual property rights shall not pass to Purchaser or any other third party. Purchaser understands that its use of any third-party software is subject to, and it will comply with, the terms of any applicable third-party licence agreements or notices and to the rights of any other third-party owners or providers of software or firmware included in the Software.
7.4 Purchaser shall (a) only use the Software and Use Documents with Products or Services with or for which it is provided or for a purpose within the scope of the application for which it is provided, (b) not cause or permit any reverse engineering, disassembly, decompilation, modification or adaptation of the Software or the combination of the Software with any other software, or (c) not move the Software to any country in violation of United States Foreign Asset Control Regulations or other applicable import or export control regulations.
7.5 Any replacements, fixes or upgrades of the Software which Purchaser may hereafter receive from Seller or an affiliated company of Seller, shall subject to the same restrictions and other provisions contained herein, unless such replacement, fix or upgrade is provided with a separate licence agreement which by its terms specifically supersedes these Terms. 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 specified by Seller.
7.6 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.
7.7 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 Seller 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 Seller in advance.
7.8 The Software is covered by the limited warranties applicable for the System set forth in Clause 8 & 9 (including all limitations of liability and disclaimers of warranties contained therein) and by no other warranties, express or implied.
7.9 Failure to comply with any of the terms of this Clause 7 terminates Purchaser’s right to use the Software. Upon termination of such right, Purchaser must return the disk provided by Seller, and all copies thereof or of any other Software to Seller.
8.1 Seller warrants to Purchaser that Products will conform to Seller's published specifications for (a) one (1) year from the date of shipment of Products or (b) the remaining shelf life or the period prior to the expiration date of Product, whichever is shorter.
8.2 Seller warrants that Services shall be performed in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and Seller shall devote adequate resources to meet its obligations under the Agreement. Any claim that Seller has breached the obligation herein must be made within the ninety (90) day period after the performance of the applicable Services.
8.3 Seller warrants that the Software, including any upgrades thereto, will materially conform to published specifications for one (1) year from date of delivery.
8.4 Except for the warranties set forth above, Seller makes no warranty whatsoever with respect to Products (including any uses thereof), Services, the Software or any technical assistance or information that it provides, including (a) warranty of merchantability; (b) warranty of fitness for a particular purpose; or (c) warranty against infringement of intellectual property rights of a third party; whether express or implied by law, course of dealing, course of performance, usage of trade, or otherwise. Any suggestions by Seller regarding use, selection, application or suitability of Products shall not be construed as an express or implied warranty.
8.5 The limited warranties set forth above do not apply unless: (a) Purchaser gives written notice of the defect(s) to Seller immediately upon discovery; (b) if applicable, Seller is given reasonable opportunity to examine the relevant Products, Services or Software; and (c) the defect(s) are verified by Seller.
8.6 The limited warranty set forth in Clause 8.1 does not apply if: (a) a defect arises as a result of a breach of the obligations in Clause 4; (b) any unauthorized installation, repairs, modifications, upgrades, maintenance or other servicing of Products occurs; (c) a defect arises as a result of normal wear and tear or lack of proper maintenance; or (d) Products are used beyond the shelf life or expiration date as set forth in the applicable Use Documents.
8.7 The limited warranty set forth in Clause 8.2 does not apply if an equipment failure or defect results directly or indirectly from the following: (a) non-compliance with Use Documents; (b) any misuse, theft, water flow-back, neglect or wrongful act by Purchaser, its contractors or agents; (c) accidents or shipping related damage; (d) electrical failure; (e) vandalism, explosion, flood or fire, weather or environmental conditions; or (f) any unauthorised installation, repairs, modifications, upgrades, maintenance or other servicing. If this limitation applies but Seller, at its sole discretion, elects to re-perform the applicable Services, Purchaser may be charged for fees and expenses, including but not limited to travel costs and any working time of Seller’s employees, contractors or agents (at list rate).
8.8 The limited warranty set forth in Clause 8.3 does not apply to any defects arising out of or relating to (a) Purchaser’s breach of Clause 7.4; (b) Purchaser’s failure to promptly install required updates; or (c) the operation of Purchaser or a third-party system or network.
8.9 Subject to the conditions set forth above in this Section, including the time limitations set forth in Clauses 8.1, 8.2 and 8.3, Seller shall, in its sole discretion (a) with respect to Products or Software, either repair or replace Products or Software (or the defective part thereof) and if Seller is unable to repair or replace, Seller shall credit the price of such Products, Software or the part thereof; or (b) with respect to Services, re-perform the applicable Services or credit the price of such Services at the pro rata contract rate. The remedies set forth herein shall be Purchaser's sole and exclusive remedy and Seller's entire liability for any breach of its warranty.
9.1 Purchaser shall not return Products without Seller’s prior written consent. Seller reserves the right to inspect Products at Purchaser’s site and/or require disposal instead of return. All returns must be in compliance with Seller’s instructions and may be subject to a restocking charge. Certain Products (e.g. diagnostic reagents; refrigerated or frozen products; custom Products or special orders) may not be returned under any circumstances.
9.2 Irrespective of the reason for any return of Products, any return must be coordinated with Merck Seller prior to return, and all Products to be returned must include Merck’s Seller’s approved Product return authorization form. Merck Seller reserves the right to request a disposal instead of return. Title to the returned Products, if already acquired by Purchaser, shall retransfer to Merck Seller upon delivery of the Products to Merck’s Seller’s facilities. The Any returned Products must be returned in their original packaging with the original Merck Seller label affixed, and unaltered in form and content. Where applicable, Purchaser agrees to provide Merck Seller 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.
10. Limitation of Liability and Indemnification
10.1 Purchaser assumes all risk and liability for loss, damage or injury to persons or to property of Purchaser or others arising out of (a) the transport, storage or use of Products or Software, including infringement of any third-party intellectual property rights resulting from Purchaser’s specific use of Products or Software and (b) any provision or use of Services. If Seller's performance of its obligations is prevented or delayed by any act or omission of Purchaser, its agents or subcontractors, Seller shall not be deemed in breach of its obligations or otherwise liable for any costs, charges, or losses sustained or incurred by Purchaser or others, in each case, to the extent arising directly or indirectly from such prevention or delay.
10.2 Purchaser shall indemnify and hold Seller, its affiliates, and their respective agents, employees, and representatives, harmless from and against all claims, damages, losses, costs and expenses (including attorney’s fees) (a) arising from or in connection with the transport, storage, sale or use of Products, (b) resulting from Purchaser’s breach of the Agreement, and/or (c) arising from the negligence, recklessness or misconduct of Purchaser, its affiliates, or their respective agents, employees, partners or subcontractors. 9.3 Except as otherwise expressly provided herein, Seller shall not indemnify nor be liable to Purchaser or any person or entity for any claim, damage or loss arising out of the Products, including the sale, transport, storage, failure, use or distribution thereof, the provision of Services, or the licence of Software regardless of the theory of liability, including but not limited to warranty, negligence or strict liability. In addition, Seller shall not be liable for incidental, consequential, indirect, exemplary or special damages of any kind, including, without limitation, liability for loss of use, loss of work in progress, loss of revenue or profits, cost of substitute equipment, facilities or services, downtime costs, or any liability of Purchaser to a third party. The total liability of Seller hereunder shall not exceed the purchase price of Products or Services, or the licence fee of Software involved. Without limiting the provisions regarding and limiting warranty claims hereunder, all claims must be brought within one (1) year of delivery of Products or Software or performance of Services, regardless of their nature.
11.1 Products delivered by Seller shall remain Seller'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).
11.2 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:
11.2.1 Under no circumstances may the Product be pledged or assigned to third parties as security in the ordinary course of business.
11.2.2 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 Seller 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 Seller. 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. Seller 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.
11.2.3 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 Seller. Such assignment shall cover the amount charged to Purchaser by Seller for the resale of the Product subject to Retention of Title.
11.3 Any processing or modification of Products by Purchaser prior to the transfer of title shall be deemed effected on behalf of Seller (it being understood that this does not give rise to any claims of Purchaser vis-à-vis Seller). If the Products are processed together with other objects not belonging to Seller, Seller acquires a co-ownership in the resulting new objects in the proportion of the value of its Products (final invoice total, including GST) 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.
11.4 If the Products are inseparably mixed with other objects not belonging to Seller, Seller shall acquire co-ownership in the new objects in the proportion of the value of its Product (final invoice total, including GST) 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 Seller co-ownership in such object on a pro-rata basis. Purchaser undertakes to safekeep the owned or co-owned objects on Seller’s behalf.
11.5 In the event of 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 Seller release such securities whose value exceeds the above percentage.
11.6 The assertion of Seller’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 Seller’s receivables vis-à-vis Purchaser. None of the stipulations contained in this Clause 11 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.
11.7 Seller is entitled to withdraw from the Agreement, if a Product subject to Retention of Title on the part of Seller 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 Seller has expressly agreed to such sale in writing or in electronic format.
12.1 Representations and Warranties for Services. If Purchaser is purchasing Services from Seller, 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, Seller’s site or a Seller’s authorized third-party site, as determined by Seller at its sole discretion. In the event that the purchased Services shall be provided at a Seller or Seller authorized third party site, equipment will need to be returned to the Seller 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 Seller 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 Seller’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 Seller;
Such circumstances shall entitle Seller to charge Purchaser a reasonable compensation (if applicable) for any non-reimbursable travel costs, any working time of Seller’s employees, contractors or agents (at list rate), and for similar expenses.
12.1.3 Seller 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”). Seller 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 Seller 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, or (ii) Seller is failing to repeat the performance of such Services within due time, or (iii) repeating the performance would result in unreasonable costs for Seller, the parties agree that the sole remedy shall, subject to the limitations under Clause 10, be Seller’s liability for damages or expenditure , including a refund to the Purchaser of sums paid for the portion of such Services.
(c) For cases of Force Majeure, Clause 16 shall apply.
(d) The limitation period for this Service Warranty is 6 (six) months, commencing at the end of the year in which Seller completes the respective (portion of) Services.
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 Seller, its 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 Seller.
12.2 Process Solutions Products and Systems
If Purchaser is purchasing hardware Products and systems from Seller'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 Terms.
13.1 Export Controls, Embargos. Purchaser acknowledges that the Products covered by this Agreement 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 Seller or on Seller’s behalf, 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 Product 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, Seller 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 Seller harmless from any and all liabilities or costs incurred by Seller 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.
13.2 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.
13.3 (Electronic) Waste. 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.
13.4 Obligations on Purchase of Chemicals. In the event Purchaser wishes to purchase chemicals from Seller, the following shall apply: Purchaser is aware of and agrees to comply with all its current and future obligations under the applicable laws in Malaysia pertaining to reporting the handling of purchased chemicals. Purchaser shall reimburse Seller for all expenses incurred by Seller in connection with any required notification from Purchaser to Seller pursuant to any obligations under the applicable laws. Seller assumes no liability for delays in delivery arising in this context. If, for environmental or health protection reasons, Seller does not classify the use envisaged by Purchaser as an identified use, Seller may withdraw from the Agreement unless Purchaser informs Seller that it will abstain from the envisaged use.
13.5 Compliance with Law. Purchaser shall comply with all applicable laws, regulations and ordinances, including but not limited to those pertaining to the following: export control, pharmaceutical, cosmetic and food preparations, electrical or electronic waste, introduction or production and use of chemical substances (e.g. Toxic Substances Control Act, REACH), and bribery and corruption (e.g. Foreign Corrupt Practices Act and UK Bribery Act). Purchaser shall maintain in effect all required licences, permissions, authorisations, consents, and permits. Purchaser shall comply with all applicable export and import laws in its purchase of Products hereunder and assumes all responsibility for all shipments governed by such laws. Seller may terminate the Agreement or suspend delivery if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
In addition to any other remedies provided hereunder, Seller may immediately terminate the Agreement upon written notice if Purchaser: (a) fails to pay any amount when due; (b) has not otherwise performed or complied herewith, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganisation , or assignment for the benefit of creditors.
All non-public, confidential or proprietary information, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Purchaser, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" is confidential and may not be disclosed or used by Purchaser for its own use, including but not limited to filing any patent applications disclosing or based on such confidential information, unless authorised in advance in writing by Seller. Upon request, Purchaser shall promptly return or destroy all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this section. This section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.
Neither party will be in default of any obligation under this Agreement (other than obligations to pay money) to the extent performance is prevented or delayed by a Force Majeure Event. A “Force Majeure Event” shall include any occurrence beyond the reasonable control of a party, including without limitation: act of nature (e.g., flood, earthquake or storm); war or terrorism; civil commotion or riot; epidemic or pandemic (e.g., COVID-19); destruction of facilities or materials; fire or explosion; labour disturbance or strike; laws, regulations, directives or orders of any government, regulatory or judicial authority; embargo, shortage of raw materials or labour; equipment failure; or failure of public utilities or common carriers. The party declaring a Force Majeure Event will notify the other party in writing, explaining the nature thereof, and will also notify the other party of the cessation of any such event. A party declaring a Force Majeure Event will use commercially reasonable efforts to remedy, remove, or mitigate such event and the effects thereof. Upon cessation of the Force Majeure Event, performance of any suspended obligation or duty will promptly recommence.
17.1 Entire Agreement. These Terms shall constitute the final, complete, and exclusive statement of the terms of the Agreement between the parties pertaining to the sale of Seller’s Products and/or Services, and shall supersedes all prior and contemporaneous understandings or agreements of the parties.
17.2 Proprietary Rights. Seller, or its affiliates, is the owner of certain proprietary brand names, trademarks, trade names, logos and other intellectual property (“Merck IP”). Except as otherwise expressly permitted by Seller, no use of Merck IP is permitted, nor the adoption, use or registration of any words, phrases or symbols so closely resembling any of “Merck IP” 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 Seller of another entity’s Products or Services.
17.3 Typographical Errors. Stenographic, clerical or computer errors on the face of any Seller invoice shall be subject to correction by Seller.
17.4 No Waiver. No waiver by Seller of any provisions of the Agreement is effective unless explicitly set forth in writing. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Agreement operates, or may be construed, as a waiver thereof.
17.5 Assignment. Purchaser shall not assign any of its rights or delegate any of its obligations under the Agreement without Seller’s prior written consent. Any purported assignment or delegation in violation hereof is null and void. No assignment or delegation relieves Purchaser of any of its obligations hereunder.
17.6 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
17.7 No Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties and their respective successors and permitted assigns and nothing herein is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature.
17.8 Publicity and Use of Name. Purchaser shall not, without the prior written consent of Seller, (a) refer to Seller, its affiliates, Products or Services in any marketing, promotion or other publicity material, whether written or in electronic form, or (b) use proprietary brand names, trade marks, trade names, logos and other intellectual property owned by Seller or one of its affiliates.
17.9 Governing Law and Venue. All matters arising out of or relating to the Agreement are governed by and construed in accordance with the laws of Malaysia without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, or proceeding arising out of or relating to the Agreement shall be instituted in courts located in Malaysia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
17.10 Notices. Except if otherwise agreed upon by the parties, any notices required hereunder shall be made in writing and sent by courier service with tracking or registered or certified mail to the other party at its registered office or principal place of business or such other address as indicated by the receiving party.
17.11 Severability. If any term or provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
17.12 Survival. Provisions hereof which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Agreement including, but not limited to, the following provisions: Sections 4, 7, 8, 10, 15, 17.9 and 17.12.
17.13 Amendment and Modification. Except as otherwise set forth herein, the Agreement may only be amended or modified in writing and signed by an authorized representative of each party.
17.14 Data Protection. Seller will request, process and use personal data (e.g. contact name and business addresses) from Purchaser to fulfil its obligations under the Agreement and for the continuing relationship management with Purchaser. Seller’s processing activities shall be governed by its privacy policy posted at https://www.sigmaaldrich.com/privacy.
17.15 Language. The Terms is prepared in the English language. The Malaysian language version of this Terms is provided for information purposes only. In case of any inconsistencies between the English language version and the Malaysian language version, therefore the English language version of the Terms shall prevail.