Conditions of Sale
1.0 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 Millipore, the life science division of Merck KGaA, through any of its corporate entities, including without limitation EMD Millipore Corporation or Merck KGaA (such applicable selling entity hereunder, “Merck Millipore”) to a customer requiring purchase of such goods or services (“Purchaser”). While Clauses 1 to 10 shall, in principle, apply to all goods or services, Clause 11 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 Millipore, 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 Millipore 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 Millipore shall have the right to amend these GTC 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.
2. Conclusion of Contract, Orders
2.1 Unless otherwise agreed, any offers of Merck Millipore are subject to change.
2.2 Any binding contract on the sale of goods or services requires either (i) an offer of Merck Millipore explicitly marked as binding or (ii), upon any Purchaser’s order (oral or otherwise), an order confirmation of Merck Millipore 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 Millipore 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 Millipore 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 Millipore 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 $2,000 net (i.e. without sales tax applicable according to legal provisions), Merck Millipore reserves the right to charge a flat-rate handling fee of $200.
3. Deliveries, Returned Products
3.1 Merck Millipore’s obligation to deliver to Purchaser the product ordered is subject to Merck Millipore’s receiving correct and timely delivery itself from its suppliers. This condition shall only apply in case Merck Millipore 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 Millipore, (i) Merck Millipore shall notify Purchaser immediately, and (ii) Merck Millipore is entitled to withdraw from the contract, with any payments of Purchaser to be refunded immediately.
3.2 Delivery times given by Merck Millipore in offers and order confirmations are non-binding, except otherwise explicitly agreed. However, if binding delivery deadlines have been agreed, Merck Millipore’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 Millipore shall have the right to extend the delivery period. Merck Millipore’s 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 Millipore's respective warehouse on the account and at the risk of Purchaser. Merck Millipore is free to choose the carrier and the forwarding company and the means of transport. Merck Millipore reserves the right to choose the method of packaging. Partial deliveries (installments) are permissible and may be invoiced by Merck Millipore immediately. The risk of accidental loss of the product to be delivered passes from Merck Millipore to Purchaser on dispatch from the warehouse even if delivery is made carriage paid.
3.4 Title and risk is transferred upon dispatch of delivery. Merck Millipore 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 Millipore) passes to Purchaser from the time of the delay on. In case of such delays, any costs incurred by Merck Millipore due to the delay in delivery (in particular warehouse costs and charges) must be borne exclusively by Purchaser. In case of accidental loss, Merck Millipore 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 Millipore’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 Millipore is entitled to withdraw from 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 Millipore 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 Millipore prior to return, and all products to be returned must include Merck Millipore’s approved product return authorization form. Merck Millipore reserves to right to request a disposal instead of return. Title to the returned products, if already acquired by Purchaser, shall retransfer to Merck Millipore upon delivery of the products to Merck Millipore’s facilities. The products shall be returned in their original packaging with the original Merck Millipore label affixed, and unaltered in form and content. Where applicable, Purchaser agrees to provide Merck Millipore 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 Millipore may define certain products as Custom Made-To-Order ("CMO"). Purchaser must provide Merck Millipore with product specifications prior to the start of manufacturing a CMO product. Merck Millipore 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 a CMO product(s) are not cancelable.
4. Prices, Taxes, Payment, Late Payments
4.1 Unless otherwise specified in Merck Millipore’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 Millipore’s order confirmation offer, if any, or its order confirmation, all prices are given in USD.
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 Millipore is required to prepay any such tax, Purchaser shall fully reimburse such tax prepayment to Merck Millipore.
4.4 Unless otherwise specified in Merck Millipore’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 Millipore. Credit card payments are subject to acceptance by Merck Millipore and limited to a total order value equal to or less than ten thousand USD ($10,000) and deductions will be made at time of order placement by Purchaser.
4.5 In case of delay of payment by Purchaser Merck Millipore reserves the following rights, notwithstanding further statutory rights: (i) Merck Millipore 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 published prime rate of Bank of America or its successor, and (ii) Merck Millipore may terminate the order or suspend any further deliveries to Purchaser.
4.6 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.
4.7 In case Merck Millipore 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 Millipore 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 Millipore, (v) compliance with legal requirements in case products are to be disposed by Purchaser.
5.4 Purchaser shall indemnify and hold Merck Millipore, its corporate affiliates, 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. Warranties
6.1 With respect to all products to be delivered, the parties agree on the following scope of the warranties of Merck Millipore:
6.1.1 The products delivered by Merck Millipore correspond to the applicable published specifications.
6.1.2 The specifications only relate to the substances and values specified, and to pharmacopoeia data and information on E numbers if applicable. Statements with regard to suitability only apply when explicitly agreed by the parties
6.1.3 Any data which is based on Merck Millipore’s testing procedures, may only be compared to testing following the same procedures. Any product data listed in the catalogue or any product information provided is intended for informational purposes only and does not represent a binding statement with respect to the characteristics of the products delivered; Merck Millipore may not be held liable with respect to the accuracy of the product data provided.
6.1.4 Merck Millipore 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 Millipore. Merck Millipore 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 Millipore 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 Millipore's standard warranty applicable to the products or services to make any representations as to the products other than those set forth in Merck Millipore'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 No warranty provided by Merck Millipore will 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 Millipore 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 Millipore;
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 Millipore 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 Millipore 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 Millipore 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 products, the respective costs shall be borne by Merck Millipore; if the analysis does not confirm non-conformance of the product, the costs for analysis shall be borne by Purchaser.
6.3.4 Merck Millipore 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 In case of any complaint in accordance with Clause 6.3 about warranties, subject to the limitation period in 6.5, Merck Millipore’s sole obligation shall be to repair or replace, at its option, the applicable product or part thereof. If after exercising reasonable efforts, Merck Millipore is unable to repair or replace the product or the part, then Merck Millipore shall refund to Purchaser all monies paid for such applicable product or part.
6.5 The warranties set forth this Clause 6 shall be provided by Merck Millipore for a period of one (1) year from the shipment of the products. 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.
6.6 OTHER THAN THE WARRANTIES PROVIDED HEREIN, Merck MILLIPORE MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. Merck MILLIPORE MAKES NO REPRESENTATION OR WARRANTY THAT THE PRODUCTS OR THE USE THEREOF WILL NOT INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHT.
7. Limitation of Liability of Merck Millipore
7.1 Purchaser assumes all risk and liability for loss, damage or injury to persons or to property of Purchaser or others arising out of the presence or use of the products or Merck Millipore’s provision of services, including infringement of any third party intellectual property rights resulting from specific use of the products by Purchaser.
7.2 Except as expressly provided otherwise herein, Merck Millipore shall not indemnify nor be liable to Purchaser, Purchaser‘s customers, successors, or to any person or entity for any claims, damages or losses arising out of the sale or use of products or the provision of services, where liability is premised upon any theory including, but not limited to, warranty, negligence or strict liability.
7.3 MERCK MILLIPORE SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS OR SERVICES 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 BUYER TO A THIRD PARTY. THE TOTAL LIABILITY OF MERCK MILLIPORE UNDER THESE TERMS AND CONDITIONS OF SALE SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS OR SERVICES INVOLVED. All claims must be brought within one (1) year of delivery, regardless of their nature.
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 Millipore 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. Compliance Requirements
9.1 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 Millipore, 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 Millipore 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 Millipore harmless from any and all liabilities or costs incurred by Merck Millipore 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.
9.2 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.
9.3 (Electronic) Waste
In the event Purchaser wishes to purchase electrical appliances from Merck Millipore, the following shall apply: Merck Millipore 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 Millipore name (brand) or were/are resold as such. General information about disposal is to be found at www.merckmillipore.com. For any specific questions, please e-mail or call your local Merck Millipore representative. 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.
9.4 REACH
In the event Purchaser wishes to purchase chemicals from Merck Millipore, 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 Millipore for all expenses incurred by Merck Millipore in connection with Purchaser’s notification to Merck Millipore 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 Millipore assumes no liability for delays in delivery resulting in this context. If, for environmental or health protection reasons, Merck Millipore does not classify the use envisaged by Purchaser as an identified use, Merck Millipore may withdraw from the contract unless Purchaser informs Merck Millipore that it will abstain from the envisaged use.
9.5 Data Protection
Merck Millipore will request, process and use personal data (mainly name and business addresses of the contact person) from Purchaser to manage Purchasers’ requests, claims, orders or repairs and the continuing relationship management to Purchaser. Some of those data processing activities are handled on behalf of Merck Millipore by Merck KGaA, Germany, its affiliates or external service providers. These companies may be based worldwide, including areas outside the European Union like the U.S.A. In any case of a data transfer of personal data the legal data protection requirements for Merck Millipore are ensured. Furthermore Merck Millipore will transfer these data to authorities, if there is an existing legal obligation for Merck Millipore to do so. Individuals have the right to access their data processed by Merck Millipore and have such data updated. Individuals, subject to the legal requirements of data protection laws, may also require that their data be deleted or blocked. For further information see Merck Millipore's Security & Privacy policy posted at www.merckmillipore.com.
9.6 Anti Corruption Laws, U.S. Foreign Corrupt Practices Act and UK Bribery Act
Purchaser acknowledges that: (a) Merck Millipore 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, (b) Merck Millipore is subject to other bribery and corruption laws, including without limitation the UK Bribery Act and local laws for the jurisdictions covered hereunder. 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 Millipore to be in violation of, the provisions of the FCPA, the UK Bribery Act or applicable local bribery and corruption law.
10. Miscellaneous
10.1 Governing Law
Unless explicitly otherwise agreed, any contract between Merck Millipore and Purchaser shall be subject to the laws of the Commonwealth of Massachusetts, 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.
10.2 Place of Performance
The place of performance for all claims resulting from the contract concluded between Purchaser and Merck Millipore is the registered office of Merck Millipore’s headquarters in Billerica, MA.
10.3 Venue for Disputes
The venue for all disputes between the Parties shall be the courts located in Boston, Massachusetts.
10.4 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 Millipore products and the provision of Merck Millipore services and supersedes all prior and contemporaneous understandings or agreements of the parties.
10.5 Modification, Written Form
Unless otherwise agreed in these GTC, any changes/amendments and/or additions to these GTC, including to this clause 10.5, must be agreed in writing between the contract parties in order to be effective.
10.6 Notices
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.
10.7 Severability
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.
10.8 Assignability
Orders are not assignable or transferable, in whole or in part, without the express written consent of Merck Millipore.
10.9 Publicity
Any marketing, promotion or other publicity material, whether written or in electronic form, that refers to Merck Millipore, its affiliates, their products, or to these GTC must be approved by Merck Millipore prior to its use or release.
10.10 Confidentiality
Purchaser shall not, without Merck Millipore’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 Millipore, or on Merck Millipore’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 Millipore’s technical information or publishing the technical information in any form, except in the performance of this agreement. Merck Millipore shall retain title to all such technical information and Purchaser shall, at Merck Millipore’s request or upon completion of this agreement, return or deliver all such tangible technical information to Merck Millipore. 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 Millipore or on Merck Millipore’s behalf.
10.11 Proprietary Rights
Merck Millipore, 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 Millipore, no use of Merck Millipore’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 Millipore'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 Millipore of another entity’s products or services.
10.12 Waiver of Breach
The waiver by either party at any time to require performance by the other of any provision of these GTC shall not operate as a waiver of such provision at any other time.
10.13 Typographical Errors
Stenographic, clerical or computer errors on the face of any Merck Millipore invoice shall be subject to correction by Merck Millipore.
10.14 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 Millipore subject to the other terms of the GTC in relation to the products), and personnel.
10.15 Third Parties
Nothing in this document is intended to create any rights in third parties against Merck Millipore.
11. Specific Provisions
11.1 Representations and Warranties for Services
If Purchaser is purchasing services from Merck Millipore, the following provisions shall exclusively apply in relation to representations and warranties for services and services only.
11.1.1 Services may be provided by Merck Millipore at the equipment site, Merck Millipore site or an Merck Millipore authorized third party site. In the event that the purchased services shall be provided at an Merck Millipore or an Merck Millipore authorized third party site, equipment will need to be returned to such 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 Millipore a qualified employee who is familiar with the equipment. Such employee must be present during the call to assist as may be necessary in the performance of the services and (ii) provide Merck Millipore 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.
11.1.2 Merck Millipore’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 Millipore;
Such circumstances shall entitle Merck Millipore to charge Purchaser a reasonable compensation (if applicable) for any non-reimbursable travel costs, any time of Merck Millipore’s employee, contractor or agent (at list rate), and for similar losses.
11.1.3 Merck Millipore 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 (the “Service Warranty”) for ninety (90) days from completion by Merck Millipore of the portion of services at issue. Purchaser agrees that Merck Millipore, in its sole discretion, may provide services through appropriately trained and qualified third party representatives.
In the case of a breach of the Service Warranty, the parties agree that the sole remedy available under the agreement shall be repeat performance by Merck Millipore of the portion of such services that constitutes or gives rise to the breach. If in its reasonable opinion Merck Millipore is unable to repeat the performance of such services, the parties agree that the sole remedy in such a case is for Merck Millipore to refund to the Purchaser all sums paid for the portion of such services. For the avoidance of doubt, the parties agree that Merck Millipore shall not be liable for any consequential, incidental, indirect, economic or special loss or loss to property caused by any service or part thereof supplied under this agreement or subject to any penalty, by late delivery of any such service or part thereof, whether or not the aforementioned loss is due to the negligence of Merck Millipore. In any case, the maximum aggregate liability that can be attributed to Merck Millipore under this agreement is expressly limited to an amount equal to the sums effectively paid to Merck Millipore by the Purchaser for services under this agreement; provided that any liability for Purchaser’s products in process shall be excluded. Merck Millipore makes no other express or implied warranty. Merck Millipore will not be in breach of this agreement or otherwise liable to the Purchaser for any delay in performance or any non-performance of any obligations under this agreement (and the time for performance will be extended accordingly) of and to the extent that the delay or non-performance is owing to Force Majeure.
11.1.4 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 Millipore, its corporate affiliates including Merck Millipore and any entity under majority control of Merck Millipore, 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 Millipore.
11.2 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.
11.3 Software License Terms.
If you are licensing software from Merck Millipore, 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.
11.3.1 Merck Millipore 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 Millipore.
11.3.2 The Software and related copyrights are owned by Merck Millipore, by an affiliated company of Merck Millipore, and/or by certain suppliers of Merck Millipore 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 Millipore, 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.
11.3.3 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.
11.3.4 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.
11.3.5 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 Millipore 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 Millipore in advance.
11.3.6 The Software is covered by the limited warranties set forth in Clause 6 and by no other warranties, express or implied.
11.3.7 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 Millipore, and any and all copies thereof or of any other Software to Merck Millipore.
11.3.8 Any replacements, fixes or upgrades of the Software which Purchaser may hereafter receive from Merck Millipore or an affiliated company of Merck Millipore, 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.