1.1 These General Conditions of Supply and Delivery (the "Conditions") shall apply to all sales, supplies or deliveries of goods and services (collectively the "Goods") by Merck Ltd., Korea (hereinafter, the "Supplier") to any customer (the "Customer"). No general terms or conditions used by the Customer shall apply unless expressly agreed to in writing by the Supplier. All purchase orders for Goods shall be valid only if confirmed by the Supplier or the delivery completed.
1.2 All agreements and legally significant statements made by the parties (Customer and Supplier) to the contract shall be in writing to be valid.
1.3 If there is a separate written contract between the parties hereto, the terms and conditions under that contract shall prevail over the Conditions; all other matters not specified in the contract shall be governed by the Conditions and the customary practices prevailing in the relevant business.
1.4 In respect of all documents and literature used by the Supplier, the Supplier reserves full title and property rights and rights of exploitation originating from the copyright over relevant works. Such documents or literature may notbe made available to third parties without the prior written consent of the Supplier and they shall, upon request, be immediately returned to Supplier unless otherwise agreed in writing between the parties.
2. Price & Payment Terms
2.1 Prices include packaging materials & delivery costs within Korea and are subject to change. For order of a value below KRW 200,000, Supplier will charge handling and delivery costs to the Customer or the costs shall be borne by
the Customer by direct payment to the service provider upon delivery.
2.2 The prices quoted by the Supplier are exclusive of value added tax ("VAT"). VAT at the legal rate valid as of the day of delivery (and in case of advance payments: as of the day of such payment) will be charged in addition.
2.3 Invoices will be issued in Korean Won (KRW).
2.4 In the case of an estimate, the validity for the estimate, if not specified, shall be 15 days from the date of issue.
3.1 The Supplier delivers to all destinations within the Republic of Korea unless otherwise expressly agreed in writing by the parties.
3.2 The delivery time schedule may be subject to change and shall be non-binding.
3.3 Specific carrier and delivery method (express delivery and truck, etc.) shall be designated by the Supplier.
3.4 Events of force majeure, such as mobilization, war, riot or similar events, e.g. strike or lockout shall extend the scheduled time for delivery accordingly. Such events beyond Supplier's control shall include difficulties in power supply and delays in the procurement of raw materials.
4. Charge (Issue of tax invoice) & Payment
4.1 A tax invoice shall be prepared and issued as per order received and confirmed at the time of product delivery. The tax invoice shall accompany the goods or will be sent by separate mail.
4.2 Payment shall be made into the bank account of the Supplier or with the Customer's credit card at the time of delivery. In case of payment by a different method than a cash payment into Merck's designated bank account, a receipt shall be issued.
4.3 If the payment due date is not met, the legal consequences of delayed payment shall become effective without the need for any further notice. Without prejudice to any other or further rights or claims, interest on default payment shall be charged at the rate (in per cent) of 8% plus the amount of the then base rate applied under the legislation concerning the officially announced discount rate of the Bank of Korea.
4.4 If the Customer is in arrears with any payment due, the Supplier shall be entitled to suspend delivery, to demand the return of the goods and to demand compensation of damages for nonperformance of the contract. In case of default, particularly suspension of payment, request for composition or moratorium, all debts in favor of Supplier shall fall due immediately.
4.5 The Supplier shall be entitled to set off all claims against Customer held by Supplier or any company in which the Supplier directly or indirectly holds the majority of shares, against all claims held by Customer against Supplier or any of the companies described above.
4.6 With regard to the issuance of shipping documents and tax invoice and payment method, the parties hereto may make a different agreement by mutual consent under the related laws including the tax law.
5. Passing of Risk
5.1 Even where "carriage paid" or similar delivery terms have been agreed, the risk shall pass to the Customer when the Goods have been delivered to the carrier or picked up by the designated carrier. At the Customer's request and expense, the Supplier shall insure the Goods against the ordinary risks of transport.
5.2 If the dispatch, the delivery, or acceptance by the Customer is delayed for reason within the Customer's responsibility, or if the Customer has failed for other reason to accept delivery, the risk shall be deemed to have passed to the Customer at the time of attempted dispatch, delivery or acceptance.
Customer is obliged to check immediately on receipt of each delivery that the Goods are of the agreed type, quantity and quality. Customer shall notify Supplier immediately of any deviation, shortcomings or defects he observes during such inspection. If the Customer fails to make such inspection, the Goods will be deemed accepted. For defects, including the absence of guaranteed characteristics or properties, the Supplier shall be liable as follows:
7. Sales Return
All Sales returns must be authorized by the Supplier. To ensure proper credit, each product return must be authorized within 4 weeks from the date of delivery.
7.1 The Supplier guarantees prompt replacement of return for the following cases:
7.2 If returns are made due to the customers' mistake, the customer shall be responsible for all costs related to the returned goods as well as for handling fee (restocking charge) of 10% payable to the Supplier.
7.3 The Supplier does not authorize returns for any of the following cases:
8. Suitability for the Intended Purpose
8.1 Save where expressly granted by the Supplier in writing, no descriptions or specifications of the Goods shall be deemed as a guarantee regarding characteristics or properties of the Goods. The sole purpose of descriptions or specifications used by the Supplier is to define the contractual conditions of the Goods. In case of contradictions between several descriptions or specifications of the Goods, the description or specifications accompanying a delivery of Goods shall take precedence.
8.2 The Customer is solely responsible for evaluating the suitability of the Goods for the intended purpose. Supplier assumes no responsibility in respect of the suitability of the Goods for any designated use. In particular, all Goods, unless expressly stated otherwise in the catalogue, are primarily intended for laboratory use only. Supplier assumes no responsibility if the Goods are used for or in connection with the manufacture of pharmaceuticals, cosmetics or food ingredients, and the Customer shall satisfy itself of the Good's suitability for such manufacturing purposes and the compliance with all laws, decrees or standards (including GMP) applying to such manufacture.
8.3 All technical specifications have been obtained by using Supplier's own test environment. However, it cannot be deduced that the same results will be obtained under different conditions. The Customer is therefore obliged to confirm that adequate results will be reached under its own set of conditions prior to using the Goods in its environment.
8.4 Any and all advice the Supplier provides, whether oral or in writing, shall be subject to change and shall be non-binding.
8.5 The Supplier shall take utmost care to ensure that all descriptions and technical specifications are correct. However, the Supplier does not assume any responsibility for their accuracy.
9. Reservation of Title
9.1 The Goods shall remain Supplier's property until each and every claim against the Customer to which Supplier is entitled on account of the business connection has been duly satisfied. If the value of all sureties in favor of the Supplier exceeds the value of all claims by more than 20%, the Supplier shall release a corresponding part of the sureties in excess at the Customer's request.
9.2 For the duration of the reservation of title, the Customer is prohibited from giving the Goods in pledge or as security, and only resellers may resell the Goods in the ordinary course of business and only under the condition that the reseller receives payment from his customer or makes a proviso that the property is transferred to their customer only after fulfillment of his obligations to pay.
9.3 In case of processing, combination or mixing with other goods not belonging to the Supplier, the Customer and Supplier hereby agree that Supplier - to the extent he has no statutory rights - shall have co-ownership in the new goods or mixed goods respectively (hereinafter collectively "New Goods") in the proportion to the value of Supplier's reserved Goods being processed or mixed into/with the value of the other processed or mixed goods, each at the time of the processing or mixture. Customer shall hold the New Goods in safe custody for the Supplier, exercising due care and diligence consistent with good commercial practice.
9.4 In case Customer resells the reserved Goods or New Goods, he hereby assigns by way of security to Supplier all claims arising from such resale together with all ancillary rights thereto or substitute thereof, provided that such assignment shall be limited to the amount invoiced by Supplier for the reserved Goods being processed or mixed. To the extent Customer's claims are assigned to Supplier they shall have priority over the ones which are not assigned to Supplier, if any. Customer shall be authorized, until Supplier's revocation, to collect the assigned claims arising from resale. On Supplier's demand the Customer shall inform his customers of documents necessary for asserting the claims against Customer's customers.
9.5 In case of attachment or other acts or interventions from third parties, the Customer shall immediately inform the Supplier thereof in writing.
9.6 In case of a breach of major contractual obligations by the Customer, especially a delay in payment, the Supplier shall be entitled to take back the reserved Goods if a demand for payment is made but not honored by the Customer. The Customer shall be obliged to return the reserved Goods. The taking back, the assertion of the reservation of title or the seizure of the reserved Goods by the Supplier shall not be deemed as a termination of the purchasing contract except where such intent is expressly stated by the Supplier.
9.7 Any and all costs of collection, including but not limited to court costs, delivery and shipping, shall be borne by Customer. The Customer, at his own expense, shall take all measures necessary to prevent the reserved Goods from being damaged, lost or otherwise impaired. In case of any non-compliance by Customer with his obligations under this Section, the Supplier shall be entitled to claim damages arising from Customer's non-compliance.
Supplier's liability, irrespective of the legal grounds, is limited to foreseeable damages and losses arising from the violation of material contractual obligations. This limitation shall not apply to the extent that the Supplier is liable under mandatory law, e.g. under product liability law or in cases of intent, of gross negligence or of the absence of guaranteed characteristics. So far as permissible by law the Supplier shall not be liable for any indirect and consequential damages howsoever arising.
11. Fair Competition
The Supplier unreservedly pledges itself to observe the rules of fair competition and fair contractual relations with its partners in the business. The Supplier likewise expects its partners to comply with the laws and regulations.
12. Prohibition of making a gift
Any kind of individual gifts of goods or cash shall not be directly or indirectly offered or received in the process of delivery or in the process of preparation, execution or handling of a contract. The above prohibition shall not apply to gifts made or received in accordance with guidelines provided under relevant laws or from the dictates of prevailing social customs.
Information obtained in business transactions shall not be disclosed without prior mutual consent. Confidential information shall be limited to such information that has been expressly classified as confidential in nature. If necessary, a confidentiality agreement may be executed separately between the parties hereto.
14. Engagement in Research:
Supplier safeguards its own scientific findings and advances made in research and shall observe the rights of others.
With regard to delivery, the Supplier's and its affiliates' patent right, copyright, and trademark right, etc. shall be protected. In addition, the Supplier shall respect the patent right and intellectual property rights of third parties as well as the other party and shall not use them without permission.
15. Industrial Property Rights and Copyright
15.1 If a third party asserts legitimate claims against the Customer because the Goods or their use by Customer infringe an industrial property right or copyright (hereinafter called "Property Rights") of a third party, Supplier's obligations shall be the following.
a) At his own choice and expense, the Supplier shall either obtain a right to use the Goods, change or modify the Goods so that they do not infringe the Property Rights or replace the Goods. If this is not possible on commercially reasonable terms for the Supplier, the Supplier shall take back the Goods and refund the purchase price.
b) Supplier's aforesaid obligations shall be subject to the condition that the Customer immediately notifies the Supplier in writing of the claims asserted by the third party, that Customer shall not acknowledge any infringement and that all countermeasures and settlement negotiations are reserved to the Supplier. If the Customer stops using the Goods to reduce the damage or for other important reasons, he shall make it clear to the third party that the discontinuation of use may not be deemed as an acknowledgment of any alleged infringement of a Property Right.
15.2 The Customer shall have no claims against the Supplier if Customer is responsible for an infringement of Property Rights and if the infringement of a Property Right was caused by specific demands of the Customer, by a use of the Goods or using them together with goods not provided by the Supplier.
15.3 Further claims against the Supplier shall be excluded. However, Section 10 on (Liability) as well as Customer's right to terminate the purchase contact shall remain unaffected.
16. Protection of Environment
Supplier shall take the lead in the protection of environment and safety management and comply with all related laws and regulations. In this connection, Supplier shall also take all reasonably possible preventive measures.
17. Genetic engineering: responsible handling and observing the ethical boundaries
The deployment of genetic-engineering methods must take place in full awareness of the Supplier's responsibility for the safety of human beings and for the protection of the natural environment.
18. Related laws
All related laws including international laws and individual national laws, especially all relevant Korean laws shall be observed.
19. Governing Law and Jurisdiction
These general terms and all matters arising out of or in connection with these general terms shall be governed by and construed in accordance with Korean laws. The parties hereto shall agree to submit to the exclusive jurisdiction of Seoul District Court.
The parties hereto shall prepare the terms of agreement in English and such English version shall be deemed the original. For convenience' sake, agreement in English may be translated into Korean; provided, that if an English version conflicts with a Korean version, the English version shall prevail.
In the event that any provision contained in these Conditions are held invalid or unenforceable, the remaining parts of the Conditions shall remain fully valid and enforceable.
All other matters not specified in these general terms shall be governed by special conditions to be negotiated by the parties and the prevailing practices of business transactions in Korea.
This 'General condition of Sale and Delivery &
Statement of Merck Ltd' is effective on August 16, 2007.