General Terms and Conditions of Merck KGaA, Darmstadt, Germany

General Terms and Conditions of Sale and Deliveries

Version 2– 01.01.2020

1. Acceptance and Scope of these terms

1.1 These general terms and conditions of sale and deliveries (“GTC”) shall apply to all sales of goods and services by the Electronics business sector of Merck KGaA, Darmstadt, Germany  (“Seller”) to a customer requiring to purchase such goods or services (“Purchaser”). 

1.2 Any withstanding, amending or deviating terms and conditions of Purchaser shall not apply, even if Seller, 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) thereunder; (iii) acceptance of any shipment or delivery of product(s) thereunder without objections; (iv) payment for any of the product(s) without objections; or (v) any other act or expression of acceptance by Purchaser.

1.4 These GTC 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.

1.5 Besides, Seller shall have the right to amend the then current GTC subject to prior written notification, including information on the right to object, of Purchaser and the envisaged amendments shall become effective unless Purchaser objects within two (2) weeks after receipt of such notice.

2. Conclusion of Contract, Orders

2.1 Unless otherwise agreed, any offers of Seller are subject to change.

2.2 Any binding contract on the sale of goods 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 offer by double clicking the button “purchase” or “accept”, etc., and Seller may accept the Purchaser’s offer either in writing or electronically (in particular by email order confirmation). The confirmation of the receipt of Purchaser’s offer by Seller shall constitute no binding acceptance of Purchaser’s offer by Seller. The content of the respective contractual relationship and the scope of delivery as laid down in any binding offer or order confirmation from Seller 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. 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.

3. Deliveries, Returned Products

3.1 Seller’s contractual obligation to deliver to Purchaser the product (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 contract, with any payments of Purchaser to be refunded immediately.

3.2 Delivery times given by Seller in offers and order confirmations are non-binding, except otherwise explicitly agreed. 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 contract.

3.3 Except otherwise explicitly agreed, if a product ordered has to 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 days upon delivery; the Purchaser will be liable for loss or damages in accordance with the statutory provisions. Partial deliveries (installments) are permissible and may be invoiced by Seller immediately. 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, Seller may immediately invoice Purchaser for the products produced as well as costs and expenses incurred up to the time of the delay.

3.4 Seller is not obliged to insure the product ordered, or to have it insured, against damage in transit. 

3.5 Purchaser may, notwithstanding any contractual or statutory rights, not cancel any binding order or return purchased products without Seller’s prior express written consent.

3.6 Seller is entitled to withdraw from or terminate the contract if it becomes apparent that Purchaser is not creditworthy, in particular in case of (i) a protest regarding a bill of exchange or a cheque occurs, (ii) payments by Purchaser
stop, (iii) an unsuccessful enforcement attempt against Purchaser, or in case of an oath of disclosure; such event must not necessarily have occurred between Seller and Purchaser, or (iv) it becomes apparent that Purchaser has  provided inaccurate information regarding its creditworthiness and this information is of considerable importance.

3.7 Irrespective of the reason for any return of products, any return must be coordinated with Seller prior to return, and all products to be returned must include Seller’s approved product return authorization form. Seller reserves the right to request a disposal instead of return. Title to the returned products, if already acquired by Purchaser, shall retransfer to Seller upon delivery of the products to Seller’s facilities. The products shall be returned in their original packaging with the original Seller label affixed, and unaltered in form and content. Where applicable, Purchaser agrees to provide 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.

4. Prices, Taxes, Payment, delayed Payments

4.1 Unless otherwise agreed, the price for Purchaser’s order shall be charged in accordance with the applicable prices at the delivery date.

4.2 Unless otherwise agreed, all prices are given in EUR.

4.3 Any tax, duty, custom or other fee of any nature imposed in connection with any transaction governed by theses GTC by any governmental or quasi-governmental authority shall be paid by Purchaser in addition to the price quoted or invoiced. In the event Seller is required to prepay any such tax, Purchaser shall fully reimburse such tax prepayment to Seller.

4.4 Unless otherwise specified in Seller’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 Seller.  

4.5 In case Seller and Purchaser agree that payments are made by SEPA (Core and B2B) Direct Debit, the following shall apply: The pre-notification by Seller to Purchaser shall be made by way of the invoice. The 14-day pre-notification period before charging by SEPA Direct Debit is waived. The charging of the invoiced amount will take place at the due date as stated in the pre-notification.

4.6 In case of delay of payment by Purchaser Seller reserves the following rights, notwithstanding further statutory rights: (i) Seller may charge an interest of 10% p.a., and (ii) Seller may terminate the order or suspend any further deliveries to Purchaser.

4.7 Any right of Purchaser to withhold payment or to set off any amounts due against counter-claims on his part, e.g. pricing or invoicing complaints, shall be explicitly excluded, unless such counterclaims are uncontested, or a legal
title exists.

4.8 In case Seller 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 shall inform Seller immediately of any risks resulting from products it becomes aware of.

5.2 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.

5.3 Purchaser (i) uses the products at its own risk, and (ii) shall indemnify and hold Seller, its corporate affiliates including Seller and any entity under majority control of Seller, 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 default of Purchaser.

6. Warranties

6.1 With respect to all products to be delivered, the Parties agree on the following material characteristics (Beschaffenheit) and scope of the warranties of Seller:

6.1.1 The products delivered by Seller correspond to the applicable published specifications set forth in the catalogue (electronic or otherwise), certificates provided with the products or on the label. In case of divergences between catalogue and the label, the information on the label is decisive. Seller reserves that specifications are subject to (i) customary divergences and (ii) other minor divergences that do not adversely affect the suitability of the products with regard to the intended or regular purpose. 

6.1.2 The specifications only relate to the substances and values specified, and to pharmacopoeia data and information on E numbers. Statements with regard to suitability only apply when explicitly agreed by the parties.

6.1.3 Any data which is based on Seller’s testing procedures, may only be compared to testing following the same procedures. The product data (Stoffdaten) as listed, e.g. in the catalogue, product information, etc., is intended for information purposes only and does not represent a binding statement with respect to the characteristics of the products delivered; Seller may not be held liable with respect to the accuracy of the product data provided.

6.1.4  Seller 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 Seller. Seller 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, Seller 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 Seller's standard warranty applicable to the products or services or to make any representations as to the products other than those set forth in Seller's applicable published specifications, and any such affirmation, representation or warranty, if made, should not be relied upon by Purchaser and shall not form a part of this contract.

6.2 Any warranty provided by Seller will not apply in the event of: 

6.2.1 failure to use the products in accordance with any instructions, specifications, use statements or conditions of use made available by Seller 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 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 Seller 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 Seller 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, Seller shall have the right to inspect such products on Purchaser’s premises. As an alternative, the Parties may seek confirmation with respect to the non-conformance of the product in question by way of an analysis carried out by a third-party laboratory; such third-party laboratory must be acceptable to both parties and carry out the respective analysis within a reasonable time frame. If the results of the analysis confirm the non-conformance of the product, the respective costs shall be borne by Seller; if the analysis does not confirm non-conformance of the product, the costs for analysis shall be borne by Purchaser.

6.3.4 Seller shall assume no warranty or liability for any complaints of Purchaser that do not comply with the stipulations of this Clause 6.3.

6.4 Purchaser shall have only the following rights for purchased products:

6.4.1 In the event of a material defect or a defect of title, Seller shall provide subsequent performance by remedying the defect or delivering a product without defects. Purchaser shall not have the right to request a specific type of subsequent performance.

6.4.2 If Purchaser has not yet effected payment (fully or in part) for the defective product, Seller may make subsequent performance subject to Purchaser effecting a part-payment of the purchase price proportional to the defect claimed.

6.4.3 Subsequent performance shall be deemed unsuccessful after the second unsuccessful attempt of Seller, unless otherwise apparent given the type of problem or defect or other circumstances.

6.4.4 Only in the event (i) Seller seriously and finally refuses subsequent performance, (ii) subsequent performance is unsuccessful, (iii) subsequent performance is not reasonable for Purchaser, or (iv) a reasonable deadline for subsequent performance set by Purchaser has not been met, shall Purchaser be entitled (a) to withdraw from the contract or (b) to reduce the purchase price accordingly. Subject to the limitations of Clause 7, Purchaser may furthermore demand compensation instead of performance.

6.4.5 As regards the reasonable deadline for subsequent performance in Section 6.4.4(iv), Purchaser is aware that Seller may not have sufficient stock of the product and time for re-production depends on the possible production cycles of the available production facilities. Hence, the exact time required for subsequent performance cannot be assessed in advance, and Seller shall inform Purchaser without undue delay whether the deadline set by Purchaser can be met or shall otherwise suggest a new deadline. If the suggested deadline is substantially longer than the deadline set by the Purchaser, the Purchaser shall, in line with Section 6.4.4, be entitled to withdraw from the contract or reduce the purchase price, accordingly, instead of having to wait for subsequent performance.

6.5 The limitation period for claims for defect is 12 months from the transfer of risk, unless a breach of warranty is based on the willful misconduct of Seller. A shorter limitation period shall apply if and to the extent (i) agreed between the parties and permitted by applicable laws, or (ii) the shelf life or the expiration date of the product to be delivered – in accordance with the specifications or labels of such product – is shorter than 12 months.

7. Limitation of Liability of Seller

7.1 Any claims of the buyer against Seller for damages (and reimbursement of expenses) resulting from any acts or breach of duty by Seller, by one or more of its legal representatives, employees or vicarious agents shall, irrespective of its legal grounds, in particular in case of breach of duties resulting from contractual obligations and in case of torts, be subject to the stipulations in clauses 7.2 to 7.5 below.

7.2 In cases of wilful acts or breaches of duty, Seller shall be fully liable in accordance with statutory provisions.

7.3 In cases of grossly negligent acts and/or breaches of duty, Seller shall be fully liable in accordance with statutory provisions. This applies subject to the following exception: in cases of grossly negligent acts of simple vicarious agents, any claims for damages of the buyer shall be limited to typical foreseeable damages, with the exception of damage to life, body or health, or any claims of the buyer pursuant to the German Product Liability Act (ProdHaftG).

7.4 In cases of simple (i.e. not grossly) negligent acts or breaches of duty, Seller shall be liable in accordance with statutory provisions as follows:

7.4.1 Seller shall be liable without limitation for (i) damages to life, body or health, (ii) any costs incurred by the buyer in connection with damages resulting from the breach of a guarantee provided by Seller for the quality of
the purchase item, or (iii) claims of the buyer in accordance with the German Product Liability Act (ProdHaftG).

7.4.2 The liability of Seller shall be limited to typical foreseeable damages with respect to all other breaches of duty not included in clause 7.4.1, whose performance is a fundamental precondition for the proper fulfilment of the contract itself and on whose performance the contractual parties may regularly rely (cardinal duties).

7.4.3 The liability of Seller in any other instances not included in clauses 7.4.1 and 7.4.2 shall be excluded.

7.5 Seller shall not be liable for any damages not resulting from wilful or negligent acts or breaches of duty, except for damages resulting from the breach of a guarantee provided by Seller for the quality of the purchase item or any claims of the buyer pursuant to the German Product Liability Act (ProdHaftG).

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 by the Party or its suppliers to the extent and as long as this default is caused by an event beyond its control (force majeure). For the purposes of these GTC, 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 This provision shall apply to all contractual obligations, including claims for damages; however, force majeure shall not be an excuse to delay payments.

8.3 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 two months according to Clause 8.1.

9. Retention of title

9.1 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). 

9.2 Any disposal by Purchaser of products with a retention of title is only permitted in the ordinary course of business of Purchaser and subject to the following conditions:

9.2.1 Under no circumstances may the product be pledged or assigned to third parties as security in the ordinary course of business.

9.2.2 Where the product is sold in the ordinary course of business, the purchase price paid to Purchaser takes the place of the product. Purchaser hereby assigns to 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.

9.2.3 If Purchaser’s receivables from a resale have been included in a current account, Purchaser hereby assigns its claims vis-à-vis its customer in connection with such current account to Seller. Such assignment shall cover the amount charged to Purchaser by Seller for the resale of the product subject to retention of title.

9.3 Any processing or modification of products by Purchaser prior to the transfer of title shall be deemed effected on behalf of 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 VAT) to the value of the
other processed objects at the time of processing. In all other respects, the resulting new items shall be treated like the products delivered subject to retention of title.

9.4 If the products are inseparably mixed with other objects not belonging to Seller, Seller shall acquire co-ownership in the new objects in the proportion of the value of its product (final invoice total, including VAT) to the value of the other, intermixed objects at the time of mixing. If the products are mixed in such a way that the resulting Purchaser’s object is to be regarded as the main object, it shall be understood that Purchaser transfers to 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.

9.5 In the event the value of the securities according to the above clauses is going to exceed the amount of the receivables secured thereby by more than 10% in the foreseeable term, Purchaser shall be entitled to request that Seller release such securities whose value exceeds the above percentage.

9.6 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 9 shall be deemed to modify the provisions relating to the transfer of risk of damage to or loss of the products as set out in Clause 3 above. 

9.7 Seller is entitled to withdraw from the contract, 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 text format.

10. Compliance Requirements 

10.1 Pharmaceuticals, Cosmetics, Food

With respect to the production of pharmaceutical, cosmetic or food preparations, Purchaser shall be solely responsible for compliance with customary medical requirements, general manufacturing practice guidelines and applicable laws, orders and other provisions.

10.2 Anti Corruption Laws, U.S. Foreign Corrupt Practices Act and UK Bribery Act

Purchaser acknowledges that: (a) Seller 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) Seller is subject to other bribery and corruption laws, including without limitation the UK Bribery Act and local laws for the jurisdictions covered thereunder. Under the FCPA it is unlawful to pay or to offer to pay anything of value to foreign government officials, government employees, political candidates, or political parties, or to persons or entities who will offer or give such payments to any of the foregoing, in order to obtain or retain business or to secure an improper commercial advantage. Purchaser further acknowledges that it is familiar with the provisions of the FCPA, the UK Bribery Act and applicable local bribery and corruption laws, and shall not take or permit any action that will either constitute a violation under, or cause Seller to be in violation of, the provisions of the FCPA, the UK Bribery Act or applicable local bribery and corruption law.

11. Miscellaneous

11.1 Governing Law

Unless explicitly otherwise agreed, any contract between Seller and Purchaser shall be subject to the laws of the Federal Republic of Germany, without giving effect to its rules on conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods (CISG) of 11.04.1980 shall not apply.

11.2 Place of Performance and Venue

The place of performance for all claims resulting from the contract concluded between Purchaser and Seller is the registered office of Seller’s headquarters in Darmstadt.

The venue for all disputes between the Parties shall be Darmstadt.

11.3 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 Seller products and the provision of Seller services and supersedes all prior and contemporaneous understandings or agreements of the parties

11.4 Modification, Written Form

Unless otherwise agreed in these GTC, any changes/amendments and/or additions to these GTC, including to this clause 0, must be agreed in writing between the contract parties in order to be effective. 

11.5 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.

11.6 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 

11.7 Publicity and Proprietary Rights

Any marketing, promotion or other publicity material, whether written or in electronic form, that refers to Seller, its affiliates, its products, or to these GTC must be approved by Seller prior to its use or release.

Seller, or its affiliates, is the owner of certain proprietary brand names, trademarks, trade names, logos and other intellectual property (“Seller IP”). Except as otherwise expressly permitted by Seller, no use of Seller IP is permitted, nor the adoption, use or registration of any words, phrases or symbols so closely resembling any of Seller 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.