EMD MILLIPORE CORPORATION ("EMD MILLIPORE") Terms and Conditions of Sale
1. Acceptance. EMD Millipore's offer to sell product(s) and/or provide services to Buyer is expressly conditioned upon Buyer's acceptance of these terms and conditions. Any of the following constitutes Buyer's unqualified acceptance of these terms and conditions: (i) written acknowledgement of these terms and conditions; (ii) issuance or assignment of a purchase order for the product(s) or services, (iii) acceptance of any shipment or delivery of product(s) or provision of services, (iv) payment for any of the product(s); or (v) any other act or expression of acceptance by Buyer. THE TERMS AND CONDITIONS SET FORTH HEREIN SHALL SUPERSEDE ANY CONFLICTING TERMS CONTAINED ON BUYER'S PURCHASE ORDER OR ANY DOCUMENT OR INSTRUMENT SUBMITTED BY BUYER UNLESS EXPRESSLY AGREED TO IN WRITING BY EMD MILLIPORE.
2. Prices, Taxes and Payment. EMD Millipore reserves the right to change the prices and specifications of its products or services at any time without notice, unless otherwise explicitly specified in a written customer quote. Any tax, duty, custom or other fee of any nature imposed upon this transaction by any governmental or quasi-governmental authority shall be paid by Buyer in addition to the price quoted or invoiced. In the event EMD Millipore is required to prepay any such tax, Buyer will fully reimburse EMD Millipore for such tax prepayment. Payment terms shall be net 30 days after shipment by EMD Millipore, except that Payment made by Credit Card must be made at time of order placement by Buyer and is limited to orders with a total order value equal to or less than ten thousand dollars ($10,000 - US). EMD Millipore reserves the right to charge a late fee to invoices outstanding beyond 30 days after shipment. Interest on all sums due and unpaid after due date shall run at the maximum rate permitted by applicable law until payment is received. In addition, EMD Millipore reserves the right to require C.O.D. payment terms from any Buyer whose account is overdue for a period of more than 60 days or who has an unsatisfactory credit or payment record, as determined by EMD Millipore in its sole discretion. EMD Millipore may also refuse to sell to Buyer until each overdue account of Buyer and all of its affiliates are paid in full. Buyer is responsible for all of EMD Millipore’s collection costs on Buyer’s past due accounts.
3. Delivery and Shipment. EMD Millipore will make every effort to ship the products or provide the services hereunder in accordance with the requested delivery date, provided that EMD Millipore accepts no liability for any losses or for damages arising out of delays in delivery. All delivery dates are estimates and the time of delivery shall not be of the essence. EMD Millipore shall be entitled to deliver the products in installments. Shipment of all products shall be Free Carrier (FCA) point of distribution by EMD Millipore (INCOTERMS 2010); identification of the products shall occur when they leave EMD Millipore's point of distribution, at which time title and risk of loss shall pass to Buyer. Except as otherwise agreed, method of transportation will be per EMD Millipore’s policy. All shipment costs shall be paid by Buyer and if prepaid by EMD Millipore, the amount thereof shall be reimbursed to EMD Millipore. Products shipped with dry ice are subject to a handling charge, which is prepaid by EMD Millipore and added to the invoice. Product containing radioactive materials shall only be shipped to customers with pre-approved radiation safety permits. Such product shall only be addressed and shipped to Buyer's radiation safety office.
If applicable, at its election, EMD Millipore may reserve a volume of certain research reagent products for evaluation by or on behalf of Buyer, for up to 90 days. The reserved volume is subject to reallocation or release at EMD Millipore's discretion. Buyer is responsible for evaluation of reserved product and determination of specific volumes and delivery schedules to be requested. Within 90 days, Buyer must provide EMD Millipore with a Purchase Order detailing the product, lot, volume, and delivery schedule for reserved product. Should Buyer be unable to determine a firm delivery schedule for a reserved product within 90 days, a separate written Supply Agreement detailing product, lot, volume, price, storage fees, and a final date when the balance of all products will be delivered must be agreed upon between EMD Millipore and Buyer before any product will be delivered. The final shipment date may not exceed 365 days after execution of the Supply Agreement. The Supply Agreement is subject to all terms and conditions set forth herein.
4. Custom Made-To-Order Products. EMD Millipore may define certain products as Custom Made-To-Order ("CMO"). Buyer must provide EMD Millipore with product specifications prior to the start of manufacturing a CMO product. EMD Millipore and Buyer shall agree to all production and testing techniques prior to the start of manufacturing a CMO product. Buyer must provide a Purchase Order detailing product and delivery schedule for reserved product. Buyer shall purchase the entire lot of the CMO without regard to volume. Purchase Orders for a CMO product(s) are not cancelable.
5. Inspection. Buyer shall be responsible for inspecting all products shipped hereunder prior to acceptance, provided, that if Buyer shall not have given EMD Millipore written notice of rejection fully specifying and documenting the reasons thereof within 5 days following shipment to Buyer, the products shall be deemed to have been accepted by Buyer. EMD Millipore may, on Buyer’s premises, inspect any hazardous products claimed not to conform. In the alternative, any claimed non-conformance may be confirmed through analysis by a third-party laboratory reasonably acceptable to both parties and within a reasonable time frame. If, as a result of said analysis, non-conformance is confirmed, the cost for said analysis shall be paid by EMD Millipore; otherwise Buyer shall pay for said analysis.
6. EMD Millipore’s Standard Warranty and Limitation of Liability. EMD Millipore warrants that its products will meet their applicable published specifications when used in accordance with their applicable instructions for a period of one year from shipment of the products or, in the case of research products or chemicals, at the time of shipment or for the expressly stated duration. This warranty does not extend to any product which has been subjected to misuse, neglect, or to use in violation of instructions furnished by EMD Millipore. For products EXPRESSLY SOLD FOR USE IN FOOD, DRUG OR COSMETIC APPLICATIONS, EMD Millipore guarantees that no such product is adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act (the “Act”) or within the meaning of any other applicable law in which the definitions of adulteration or misbranding are substantially the same as those contained in the Act, as such laws are constituted and effective at the time of shipment, or is an article which may not, under Sections 404 or 505 of the Act, be introduced into interstate commerce.
EMD MILLIPORE MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. The warranty provided herein and the data, specifications and descriptions of EMD Millipore products appearing in EMD Millipore’s published catalogues and product literature may not be altered except by express written agreement signed by an officer of EMD Millipore. Representations, oral or written, which are inconsistent with this warranty or such publications are not authorized and if given, should not be relied upon.
In the event of a breach of the foregoing product warranty, EMD Millipore’s sole obligation shall be to repair or replace, at its option, the applicable product or part thereof, provided the customer notifies EMD Millipore promptly of any such breach. If after exercising reasonable efforts, EMD Millipore is unable to repair or replace the product or part, then EMD Millipore shall refund to the customer all monies paid for such applicable product or part.
EMD Millipore warrants that it shall provide services in a professional and workmanlike manner and that it will attempt in good faith to perform the services to Customer’s reasonable satisfaction. EMD MILLIPORE MAKES NO OTHER WARRANTY EXPRESS OR IMPLIED. If Millipore breaches this warranty, then Customer shall be entitled to a refund of up to the amount paid for such services. The above represents Customer’s sole remedy for breach of this services warranty.
Buyer assumes all risk and liability for loss, damage or injury to persons or to property of Buyer or others arising out of the presence or use of the products or EMD Millipore’s provision of services. Except as expressly provided otherwise herein, EMD Millipore shall not indemnify nor be liable to Buyer, Buyer’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. EMD 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, OR ANY LIABILITY OF BUYER TO A THIRD PARTY. THE TOTAL LIABILITY OF EMD 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.
7. Authorized Use. BUYER ACKNOWLEDGES THAT THERE ARE HAZARDS ASSOCIATED WITH THE USE OF THE PRODUCTS, THAT IT UNDERSTANDS SUCH HAZARDS, AND THAT IT IS THE RESPONSIBILITY OF BUYER TO WARN AND PROTECT ALL THOSE EXPOSED TO SUCH HAZARDS.
The purchase of EMD Millipore products conveys to Buyer a non-transferable right to use the purchased product(s) in compliance with the intended use statement listed on the product data or product information that accompanies each product. Each product also may be accompanied by limited use information or limited use label licenses. Unless otherwise expressly stated in product data or product documentation sheets, EMD Millipore products have not been tested for safety or efficacy. In the event of resale of product by Buyer, and where EMD Millipore has affixed warnings on the exterior of potentially dangerous products, Buyer is prohibited from changing, deleting, or obscuring such warnings in any way unless Buyer shall suitably reproduce the same warnings on the packaging. The foregoing shall not preclude Buyer from adding any additional warnings or disclaimers as may be appropriate and/or required by law as a condition to Buyer’s resale or use of the products. As stated in the documentation accompanying the product(s), certain products are intended for research use only and are not to be used 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 or application to humans or animals. Products specifically labeled for In Vitro Diagnostic ("IVD") use are approved for diagnostic procedures only when used in accordance with the accompanying product insert instructions by appropriately trained personnel. Products labeled as Analyte Specific Reagent ("ASR"), according to current United States Food and Drug Administration regulations, are products for which the analytical and performance characteristics have not been established and can only be used by high-complexity labs, including those regulated by Clinical Laboratory Improvement Amendments, public health labs, VA hospitals, and other diagnostic manufacturers.
Buyer shall at all times be solely responsible for: obtaining any necessary intellectual property permission, compliance with any and all applicable regulatory requirements, and conducting all necessary testing prior to use of product(s) purchased from EMD Millipore.
Buyer shall indemnify and hold EMD Millipore, its corporate affiliates including Merck KGaA and any entity under majority control of Merck KGaA, 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 Buyer’s sale or use of the products, including Buyer’s breach of the covenants and representations contained in these Terms and Conditions of Sale, or arising from the negligence, recklessness or misconduct of Buyer.
8. Returned Goods. Buyer may not cancel any order without EMD Millipore’s written consent. No products shipped under this contract may be returned without the express prior written authorization of EMD Millipore and all products must be returned with EMD Millipore’s approved Product Return Authorization form. Title to the returned products shall pass to EMD Millipore upon delivery of the products to EMD Millipore’s facilities. The products shall be returned in their original containers with the original EMD Millipore label affixed and unaltered in form and content. Where applicable, Buyer agrees to provide EMD Millipore with interim product temperature and other appropriate storage documentation and to package products with proper refrigerant to maintain required temperatures during transit. All product returns are subject to a restocking charge. No returns will be authorized after 120 days following shipment to Buyer. Products subject to FDA or other governmental regulation and/or cGMP processing requirements are not eligible for cancellation or return.
9. Technical Advice. EMD Millipore may, at Buyer's request, furnish 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 EMD Millipore is under no obligation to provide such technical assistance and/or information. To the extent that such technical assistance and/or information is provided to Buyer, the disclaimers and limitations of liability contained herein shall be applicable.
10. Agents, etc. No agent, employee or other representative has the right to modify or expand EMD Millipore's standard warranty applicable to the products or services to make any representations as to the products other than those set forth in EMD Millipore's product literature and any such affirmation, representation or warranty, if made, should not be relied upon by Buyer and shall not form a part of this contract.
11. No Assignment. Orders are not assignable or transferable, in whole or in part, without the express written consent of EMD Millipore.
12. Typographical Errors. Stenographical, clerical or computer errors on the face of any EMD Millipore invoice shall be subject to correction by EMD Millipore.
13. Third Parties. Nothing in this document is intended to create any rights in third parties against EMD Millipore.
14. Fair Labor Standards. EMD Millipore represents that the products or services provided hereunder were produced and/or performed in compliance with the requirements of all sections of the Fair Labor Standard Act of 1938, as amended.
15. Equal Employment Opportunity. EMD Millipore is an Equal Opportunity Employer. It does not discriminate in any phase of the employment process against any person because of race, color, creed, religion, national origin, sex, sexual orientation, age, veteran or handicapped status. The EMD Millipore Equal Opportunity Certificate, which is mailed annually to all vendors and vendees, is incorporated into this contract by reference.
16. Modification, Waiver of Breach. This contract may be modified and any breach hereunder may be waived only by a writing signed by the party against whom enforcement thereof is sought. The waiver by either party at any time to require performance by the other of any provision of these Terms and Conditions shall not operate as a waiver of such provision at any other time.
17. Governing Law. This contract shall be governed by and construed in accordance with the laws (other than those relating to conflict of laws questions) of the Commonwealth of Massachusetts.
18. Arbitration. Any and all disputes or controversies arising under, out of or in connection with this contract or the sale or performance of the products or services, except for collection matters, shall be resolved by final and binding arbitration in Boston, Massachusetts under the rules of the American Arbitration Association then obtaining. The arbitrators shall have no power to add to, subtract from or modify any of the terms or conditions of this contract. Any award rendered in such arbitration may be enforced by either party in either the courts of the Commonwealth of Massachusetts or in the United States District Court for the District of Massachusetts in Boston, Massachusetts, to whose jurisdiction for such purposes EMD Millipore and Buyer each hereby irrevocably consents and submits.
19. WEEE Directive. Buyer hereby agrees to bear any costs and conduct any required operations associated with the environmentally sound management of waste resulting from the products in accordance with all provisions, including any specific conditions, laid down by any national legislation, including legislation relating to electrical and electronic waste. Should Buyer be a distributor or the end user, for any disposal of used product support, please contact a local EMD Millipore representative.
20. Compliance with Foreign Corrupt Practices Act. Buyer acknowledges that EMD Millipore is a United States corporation and, as such, is 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., which prohibits the making of corrupt payments (the “FCPA”). Under the FCPA, it is unlawful to pay or to offer to pay anything of value to foreign government officials, or employees, or political parties or candidates, 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. Buyer further acknowledges that it is familiar with the provisions of the FCPA and hereby agrees that it shall take or permit no action which will either constitute a violation under, or cause EMD Millipore to be in violation of, the provisions of the FCPA.
21. Compliance with Export Restrictions. Buyer acknowledges that the merchandise covered by this contract is subject to the export control laws of the country from which shipment is made, as well as possibly those of the United States. Buyer further acknowledges that, depending on the product, its country of destination, its end use, and the identity of the parties to the transaction, such laws may require Buyer, either for the further transfer of the product being exported to it by EMD Millipore, or for the transfer of any item into which Buyer may incorporate such product, to seek and obtain export licenses/authorizations issued pursuant to those laws. Where Buyer reexports the merchandise in question, it is the legally responsible party for determining its correct export classification, and for obtaining any necessary export licenses/authorizations, as a courtesy, to aid Buyer in ascertaining the export classification and the potential applicability of U.S. export control laws, on its invoice, EMD Millipore shall provide Buyer (i) with what it believes is the correct classification, under local and U.S. laws, of the product being shipped and (ii) a statement as to the country of origin of the product. Buyer agrees to hold EMD Millipore harmless from any and all liabilities or costs incurred by EMD Millipore or its affiliates for any reason arising from or in connection with any export, import, regulatory, governmental or treaty violations in any jurisdiction, incurred intentionally or unintentionally.
22. Force Majeure. Neither party hereto shall be in default in the performance of its obligations hereunder (other than its obligation to make any payment of money hereunder), or be liable in damages or otherwise for any failure or delay in performance which is due to causes beyond its reasonable control. Either party affected by such an event shall promptly give notice to the other, stating the nature of the event, its anticipated duration and action being taken to avoid or minimize its effect. Neither party hereto shall be required to grant any demand or request to bring to an end any strike or other concerted act of workmen. If, at Buyer’s request or for any reason for which Buyer is responsible, the production or shipment of products is delayed, EMD Millipore may immediately invoice Buyer for the products produced, and costs and expenses incurred up to the time of the delay.
23. Publicity. Any marketing, promotion or other publicity material, whether written or in electronic form, that refers to EMD Millipore, its affiliates, their products, or to these Terms and Conditions of Sale must be approved by EMD Millipore prior to its use or release.
24. Proprietary Rights. EMD Millipore, or its affiliates, is the owners of certain proprietary brand names, trademarks, trade names, logos and other intellectual property. Except as otherwise expressly permitted by EMD Millipore, no use of EMD 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 nearly resembling any of EMD Millipore's or its affiliates’ brand names, trademarks, trade names, logos or other intellectual property as to be likely to lead to confusion or uncertainty, or to impair or infringe the same in any manner, or to imply any endorsement by EMD Millipore of another entity’s products or services.
25. Severability. If any provision of these terms and conditions is held illegal, invalid, inapplicable or unenforceable, such provision shall be deemed severed from these terms and conditions, the remainder of which shall remain in full force and effect.
26. Entire Agreement. These Terms and Conditions of Sale shall constitute the final, complete, and exclusive statement of the terms of the agreement between the parties pertaining to the sale of EMD Millipore products and the provision of EMD Millipore services and supersedes all prior and contemporaneous understandings or agreements of the parties.