Singapore

General Terms & Conditions of Sale

Version 3 (01/01/2017)

1. Acceptance and Scope of these terms

1.1 These general terms and conditions of sale (“GTC”) shall apply to all sales of products and services provided by Merck Pte, Ltd. and Sigma-Aldrich Pte Ltd (“Merck”) to a customer (“Purchaser”). Sigma-Aldrich Pte Ltd is a subsidiary of Merck Pte. Ltd.

1.2 These GTC shall supersede any conflicting terms contained on Purchaser’s purchase order or any document or instrument submitted by Purchaser unless expressly agreed to in writing by Merck.

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.

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2. Binding Contract, Changes, Cancellations

2.1 A binding contract for the sale of products or services requires either (i) an offer from Merck explicitly marked as binding, which is accepted by Purchaser in writing, or (ii) an order (oral or otherwise) from Purchaser, which is confirmed by Merck in writing or by performance in furtherance of a submitted purchase order.

2.2 Purchaser may not cancel or change a binding contract without Merck’s prior express written consent. Products subject to governmental regulations (e.g. European Medicine Agency, FDA) and/or processing requirements (e.g. cGMP) may not be eligible for cancellation. Approval of cancelations or changes may be conditional on the payment by Purchaser of costs incurred by Merck, including, without limitation, storage or shipment costs, costs of producing non-standard materials, costs of purchasing non-returnable materials, cancellation costs imposed on Merck by its suppliers, and any other costs resulting from cancellation. A verified bill of costs issued by an officer or other authorized representative of Merck shall be conclusive as to the amount of such costs.

2.3 In addition to all other remedies available under these GTC or at law (which Merck does not waive by the exercise of any rights hereunder), Merck reserves the right to suspend or cancel any order, in whole or in part, upon Purchaser‘s breach of these GTC or bankruptcy, insolvency, dissolution, receivership proceedings, or upon the occurrence of any event leading Merck to reasonably question Purchaser‘s willingness or ability to perform.

2.4 Merck reserves the right to charge the amounts stated in the following circumstances:

2.4.1 a flat-rate handling fee of SGD 60.00 for the delivery of orders with a value that is less than SGD 250.00 (i.e. not inclusive of GST and other applicable taxes);

2.4.2 an additional SGD 180.00 delivery charge per trip for urgent same day deliveries; and

2.4.3 a SGD 60.00 per trip fee, if for whatever reason customers request that delivered products be taken back by Merck.

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3. Deliveries, Returned Products

3.1 Except otherwise explicitly agreed, deliveries of products shall be dispatched from Merck's warehouse on the account and at the risk of the Purchaser. Merck is free to choose the carrier and the forwarding company and the means of transport. Merck reserves the right to choose the method of packaging. Risk is transferred upon dispatch of products. Merck is not obliged to insure the product ordered, or to have it insured, against damage in transit. Loss of or damage to the products after the risk of such loss or damage has passed to Purchaser does not discharge Purchaser from its obligation to make full payment of the purchase price. In case of accidental loss, Merck is released from its performance obligation; however, Purchaser remains obliged to make full payment.

3.2 Delivery dates provided by Merck in offers and order confirmations are non-binding and the time of delivery shall not be of the essence. If the dispatch of the product ordered is delayed owing to circumstances for which Purchaser is responsible (including a lack of acceptance), the risk of accidental loss of the products to be delivered (also while in storage at Merck) passes to Purchaser from and after the time of the delay. In case of such delays, any costs incurred by Merck due to the delay in delivery (in particular warehouse costs and charges) must be borne exclusively by Purchaser.

3.3 Partial deliveries (installments) are permissible and may be invoiced by Merck immediately. Delay in delivery of any installment shall not relieve Purchaser of its obligation to accept remaining deliveries.

3.4 Purchaser may not return products without Merck’s prior express written consent, which Merck may give or withhold in its sole discretion. Certain products and quantities may not be returned under any circumstances. Non-returnable products may include, without limitation: diagnostic reagents; refrigerated or frozen products; reagents and standards which have passed their expiration dates; custom products or special orders; products missing labels, parts, or instruction manuals; and books, computer software and equipment removed from their original packaging. Merck reserves the right to request a disposal instead of return. Title to the returned products, if already acquired by Purchaser, shall retransfer to Merck upon delivery of the products to Merck’s facility designated on the return authorization form. The products shall be returned in their original packaging with the original label affixed, and unaltered in form and content.

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4. Prices, Taxes, Payment, Late Payments

4.1 Any quotation of prices provided by Merck is firm only if Purchaser places a corresponding order within the time specified in the quote or, if no time period is specified, within 30 days from the date of issuance of the quote, and the Purchaser must request shipment of the entire quantity ordered within the agreed contract period following the order date, unless otherwise stated in the quote. For all other purchases, the Purchaser shall purchase products and services at the prices in effect as of the delivery date.

4.2 Shipment will be made promptly even if prices have been nominally increased. Price changes will be automatically applied to Purchaser‘s invoice. Notwithstanding any price quotation or prices listed by Merck, if at any time prior to delivery Merck‘s costs of materials have increased by ten percent (10%) or more, then Merck may cancel any accepted but undelivered order or condition the continuance of any order on Purchaser‘s agreement to a corresponding increase in price.

4.3 Unless otherwise specified in Merck’s order confirmation, all prices are given in SGD.

4.4 All prices are exclusive of any tax, duty, custom or other fee of any nature imposed by any governmental or quasi-governmental authority. All such taxes or fees shall be paid by Purchaser. In the event Merck is required to prepay any such tax, Purchaser shall fully reimburse Merck.

4.5 Unless otherwise specified in Merck’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. Merck reserves the right to require an advanced deposit of up to one hundred percent (100%) of the purchase price at the time of order or any time prior to delivery as a condition of performance. If for any reason, in its sole and unfettered discretion, Merck deems the ultimate collectability of the purchase price to be in doubt, Merck may, without notice to Purchaser, delay or postpone the delivery of the products and may, at its option, change the terms of payment to payment in full or in part in advance, with respect to the entire undelivered balance of products.

4.6 Late payments shall be subject to an interest charge of eight percent (8%) per annum above the base interest rate of the Central European Bank, or the maximum rate permitted by applicable law, whichever is less. If Purchaser is in default, including, without limitation, any payment is due but unpaid, Merck, at its option, without prejudice to any other of Merck's lawful remedies, may terminate the order or suspend any further deliveries to Purchaser, or sell any undelivered products on hand for the account of Purchaser and apply such proceeds as a credit, without set-off or deduction of any kind, against the agreed upon purchase price, and Purchaser agrees to pay the balance then due to Merck on demand. Purchaser must pay all costs of collection on unpaid amounts, including (without limitation) attorneys’ fees and related costs.

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5. Purchaser’s Use of the Products

5.1 Unless explicitly stated in writing by Merck with respect to any specific product, all Merck products are intended primarily for internal laboratory research purposes only, and unless otherwise stated on product labels, in Merck’s product directory or in other literature furnished to you, Purchaser has no express or implied authorization from Merck to use the products for any other purpose, including, without limitation, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes.

5.2 Purchaser represents and warrants to Merck that Purchaser will properly test, use, manufacture and market all products purchased from Merck and/or materials produced with products purchased from Merck in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with all applicable laws and regulations, now and hereinafter enacted. Purchaser agrees to inform Merck immediately of any risks resulting from products of which it becomes aware.

5.3 Purchaser understands that, since Merck’s products are, unless otherwise stated, intended for internal laboratory research purposes only, they may not be on the Toxic Substances Control Act (TSCA) inventory. Purchaser assumes responsibility to assure that the products purchased from Merck are approved for use under TSCA, if applicable. Purchaser has the responsibility to verify the hazards and to conduct any further research necessary to learn the hazards involved in using products purchased from Merck. Purchaser also assumes the duty to warn its employees, those associated with Purchaser and any auxiliary personnel (such as freight handlers, etc.) of any risks involved in using or handling the products. Purchaser agrees to comply with instructions, if any, furnished by Merck relating to the use of the products and not misuse the products in any manner. If products purchased from Merck are to be repackaged, relabeled or used as starting material or components of other products, Purchaser agrees that it will verify Merck’s assay of the products. No products purchased from Merck, unless otherwise stated, shall be considered to be foods, drugs, medical devices or cosmetics. Purchaser warrants to Merck that any material produced with products from Merck shall not be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act and shall not be materials which may not, under Sections 404, 505, or 512 of the Act, be introduced into interstate commerce.

5.4 Purchaser shall at all times be solely responsible for: (i) obtaining any necessary intellectual property permission for the use of the product (ii) obtaining all necessary licenses for the purchase, use and storage of products purchased (and such licenses to be provided to Merck upon request), (iii) compliance with any and all applicable regulatory requirements and generally accepted industry standards, (iv) conducting all necessary testing and verification, including for fitness for the intended purpose, prior to the use of product(s) purchased from Merck, (v) compliance with legal requirements in case products are to be disposed by Purchaser.

5.5 Purchaser agrees that the products may not be marketed, distributed, resold or exported by Purchaser for any purpose, unless otherwise agreed by an authorized Merck representative in writing.

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6. Inspections, Warranties

6.1 The parties agree on the following duties of Purchaser in relation to inspections:

6.1.1 Purchaser shall inspect the delivered products immediately upon receipt and without delay notify Merck of any obvious defects or missing products, no later than five (5) days after receipt. Defects in the products which only become apparent at a later point in time must be notified to Merck in writing or in electronic format by Purchaser immediately upon discovery but no later than thirty (30) days after receipt.

6.1.2 Complaints notified to forwarding agents or third parties do not constitute a notification in due form and shall therefore be deemed void.

6.1.3 In the event Purchaser claims non-conformance of a hazardous product, Merck shall have the right to inspect such products on Purchaser’s premises. As an alternative, the parties may seek confirmation with respect to the nonconformance 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 Merck; if the analysis does not confirm nonconformance of the product, the costs for analysis shall be borne by Purchaser.

6.1.4 Merck shall assume no warranty or liability for any complaints of Purchaser that do not comply with the stipulations of this Clause 6.1.

6.2 With respect to all products to be delivered, Merck warrants the following:

6.2.1 The products delivered by Merck 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.

6.2.2 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.

6.2.3 Merck 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.

6.2.4 No agent, employee or other representative has the right to modify or expand Merck's standard warranty applicable to the products or services or to make any representations as to the products other than those set forth in Merck'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.

6.3 Any warranty provided by Merck will not apply in the event of:

6.3.1 failure to install, use or maintain the products in accordance with any instructions, specifications, use statements or conditions of use made available by Merck in writing to Purchaser, such information to include but is not limited to product data, product information, limited use information, limited use label
licenses;

6.3.2 use of products which are intended for research use only, for any other purpose, including, but not limited to, 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;

6.3.3 installation, repairs, modifications, upgrades, maintenance or other servicing by a third party that is not approved by Merck;

6.3.4 normal wear and tear of the products, lack of proper maintenance or incorrect stocking conditions; or

6.3.5 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.

6.4 In case of any complaint in accordance with Clause 6.1, subject to the limitation period in 6.5, Merck’s sole obligation shall be to repair or replace, at its option, the applicable product or part thereof. If after exercising reasonable efforts, Merck is unable to repair or replace the product or the part, then Merck shall provide a credit on Purchaser’s account for all monies paid for such applicable product or part. For the avoidance of doubt, Merck’s obligation to repair or replace shall apply only to instruments directly purchased from Merck Pte. Ltd. or Sigma-Aldrich Pte Ltd.

6.5 The warranties set forth in this Clause 6 shall be provided by Merck for the particular instrument supplied under the relevant agreement or purchase order and for the warranty period as stated in the said agreement or purchase order.

6.6 OTHER THAN THE WARRANTIES PROVIDED HEREIN, MERCK AND ITS AFFILIATES MAKE NO OTHER WARRANTY, EXPRESS OR IMPLIED, AND EXPRESSLY DISCLAIMS WARRANTY OF MERCHANTABILITY AND WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE. MERCK MAKES NO REPRESENTATION OR WARRANTY THAT THE PRODUCTS OR THE USE THEREOF WILL NOT INFRINGE ANY PATENT OR OTHER PROPRIETARY RIGHT.

6.7 At Purchaser‘s request, Merck may, in Merck's sole and absolute discretion, furnish technical assistance and information with respect to the products. MERCK MAKES NO WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, WITH RESPECT TO TECHNICAL ASSISTANCE OR INFORMATION PROVIDED BY MERCK OR ITS PERSONNEL. ANY SUGGESTIONS BY MERCK REGARDING USE, SELECTION, APPLICATION OR SUITABILITY OF THE PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS OR IMPLIED WARRANTY UNLESS SPECIFICALLY DESIGNATED AS SUCH IN A WRITING SIGNED BY AN OFFICER OR OTHER AUTHORIZED REPRESENTATIVE OF MERCK.

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7. Limitation of Liability

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’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 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 Purchaser shall indemnify and hold Merck, its affiliates, and their respective agents, employees, and representatives, harmless from and against all claims, damages, losses, costs and expenses (including attorney’s fees and court costs) arising from or 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, and/or arising from the negligence, recklessness or misconduct of Purchaser, its affiliates, or their respective agents, employees, partners or subcontractors. For purposes of these GTC, the term “affiliates” means any entity controlling, controlled by or under common control with Merck, where “control” means ownership of over fifty percent (50%) of the equity capital, the outstanding voting securities or other ownership interest of an entity, or the right to receive over fifty percent (50%) of the profits or earnings of an entity. In the case of non-stock organizations, the term “control” means the power to control the distribution of profits.

7.4 MERCK AND ITS AFFILIATES 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 AND ITS AFFILIATES 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.

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8. Force Majeure

8.1 Neither Party shall be responsible and held liable for any delay or default in the performance of its obligations (other than payment obligations) under their mutual contract to the extent and as long as this default is caused by an event beyond its control. An event of force majeure shall include without limitation: (a) an act of war or terrorism, (b) fire, (c) natural disasters such as floods and storms, (d) general shortage of raw materials or inability to obtain equipment or materials, (e) restrictions on energy or water consumption, (f) law-making or governmental decisions, embargos, export and import restrictions on shipping or delivery, (g) epidemics, 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 If either party is affected by one (or more) of the events described in Clause 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.

8.3 If, at Purchaser’s request or for any reason for which Purchaser is responsible, the production or shipment of products is delayed, Merck may immediately invoice Purchaser for the products produced as well as costs and expenses incurred up to the time of the delay.

8.4 Each party shall have the right to cancel any non-delivered order in writing or in electronic format if the performance thereof is prevented for more than six months according to Clause 8.1.

8.5 If Merck is unable for any reason to supply the total demands for products specified in Purchaser‘s order, Merck may allocate its viable supply among any or all customers (including Merck, its Affiliates, and their respective distributors) on such basis as Merck may deem fair and practical, without liability for any failure of performance which may result therefrom.

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9. Compliance Requirements

9.1 Export Controls, Embargos
Purchaser acknowledges that the products covered by this contract are 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 or on Merck’s behalf, or for the transfer of any item into which Purchaser may incorporate such product, to seek and obtain export licenses/authorizations issued pursuant to those laws.

Where Purchaser re-exports the product in question, Purchaser is the legally responsible party for determining its correct export classification, and for obtaining any necessary export licenses/authorizations. As a courtesy and without accepting any liability whatsoever, to aid Purchaser in ascertaining the export classification and the potential applicability of U.S. export control laws on its invoice, Merck may 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 harmless from any and all liabilities or costs incurred by Merck 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 REACH
In the event Purchaser wishes to purchase chemicals from Merck, 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 for all expenses incurred by Merck in connection with Purchaser’s notification to Merck 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 assumes no liability for delays in delivery arising in this context. If, for environmental or health protection reasons, Merck does not classify the use envisaged by Purchaser as an identified use, Merck may withdraw from the contract unless Purchaser informs Merck that it will abstain from the envisaged use.

9.4 Data Protection
Merck will request, process and use personal data (mainly name and business addresses of the contact person) from Purchaser to manage Purchaser’s requests, claims, orders or repairs and for the continuing relationship management to Purchaser in accordance with the Personal Data Protection Act 2012. Some of those data processing activities are handled on behalf of Merck by Merck KGaA, Darmstadt, Germany, its affiliates or external service providers. These companies may be based worldwide, including areas outside the European Union, such as in the U.S.A. For all cases involving a transfer of personal data, Merck will ensure compliance with data protection regulations. Furthermore Merck will transfer these data to authorities, if there is an existing legal obligation for Merck to do so. Individuals have the right to access their data processed by Merck and have such data updated. Subject to the legal requirements of data protection laws, individuals may also require that their data be deleted or blocked.

9.5 Anti Corruption Laws, U.S. Foreign Corrupt Practices Act and UK Bribery Act
Purchaser acknowledges that: (a) Merck 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 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 Merck to be in violation of, the provisions of the FCPA, the UK Bribery Act or applicable local bribery and corruption law.

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10. Miscellaneous

10.1 Governing Law
Unless explicitly otherwise agreed, any contract between Merck and Purchaser shall be subject to the laws of Singapore, 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 is the registered office of Merck’s office in Singapore.

10.3 Venue for Disputes
The venue for all disputes between the parties shall be Singapore. Notwithstanding the foregoing, nothing in this section shall prevent Merck from bringing a claim in any court having jurisdiction over Purchaser to enjoin infringement of Merck or its affiliate’s trademark, patent or other intellectual property rights, or to prevent irreparable harm to Merck or its affiliates. The parties agree to waive, to the fullest extent permitted by law, any and all rights to a trial by jury in connection with any dispute.

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 products and the provision of Merck 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 electronic 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 or certified 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 Waiver
Merck's failure to strictly enforce any particular term or condition contained herein or to exercise any right with respect to your order shall not constitute a waiver of Merck's right to strictly enforce such terms or conditions or exercise such right thereafter. All rights and remedies are cumulative and are in addition to any other rights and remedies Merck may have at law or in equity. Any waiver of a default by you shall be in writing and shall not operate as a waiver of any other default or of the same default thereafter.

10.9 Assignability
Orders are not assignable or transferable, in whole or in part, without the express written consent of Merck. These GTC shall be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.

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

10.11 Confidentiality
Purchaser shall not, without Merck’s written consent, disclose any confidential information, including but not limited to documents, drawings, schematics, plans, designs, specifications, know-how, discoveries, production methods, or product and pricing information disclosed to Purchaser by Merck, or on Merck’s behalf. Purchaser shall take reasonable precautions against any such confidential information being acquired by unauthorized persons and shall not employ any such confidential information for its own use for any purpose whatsoever, including filing any patent applications disclosing or based on Merck’s confidential information or publishing the confidential information in any form. Merck shall retain title to all such confidential information and Purchaser shall, at Merck’s request, return or deliver all such tangible confidential information to Merck. The term “confidential 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 or on Merck’s behalf.

10.12 Proprietary Rights
Merck, 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, no use of Merck’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'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 of another entity’s products or services.

10.13 Waiver of Breach
The waiver by either party at any time to require performance by the other of any provision or part of any provision of these GTC shall not operate as a waiver of such provision at any other time.

10.14 Typographical Errors
Stenographic, clerical or computer errors on the face of any Merck invoice shall be subject to correction by Merck.

10.15 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 subject to the other terms of the GTC in relation to the products), and personnel.

10.16 Third Parties
Nothing in this document is intended to create any rights in third parties against Merck.

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11. Specific Provisions

11.1 Representations and Warranties for Services
If Purchaser is purchasing services from Merck, the following provisions shall exclusively apply in relation to representations and warranties for services and services only.

11.1.1 Unless otherwise agreed upon between the parties, services may be provided at the equipment site, Merck site or a Merck authorized third party site, as determined by Merck at its sole discretion. In the event that the purchased services shall be provided at a Merck or Merck authorized third party site, equipment will need to be returned to a Merck authorized site for repair or replacement, and Purchaser shall be responsible for all shipping and transportation costs, including any insurance costs. In the event that the purchased services are to be provided at the equipment site, Purchaser shall (i) make available to Merck a qualified employee who is familiar with the equipment and must be present during the call to assist as may be necessary in the performance of the services, and (ii) provide Merck service representatives with (a) access to its facilities to the extent necessary for such representatives to perform services, (b) a satisfactory and safe work area, and (c) adequate electrical power and water, as applicable.

11.1.2 Merck’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;
Such circumstances shall entitle Merck to charge Purchaser a reasonable compensation (if applicable) for any non-reimbursable travel costs, any working time of Merck’s employees, contractors or agents (at list rate), and for similar expenses.

11.1.3 Merck warrants that it shall provide services in a professional and workmanlike manner, consistent with average standards of workmanship and materials then prevailing in the trade, and by appropriately trained and qualified employees or third party representatives selected at its sole discretion (the “Service Warranty”). Merck makes no other express or implied warranty. In the case of a breach of the Service Warranty, the following shall apply: In the case of a breach of the Service Warranty, the parties agree that the sole remedy available under the contract shall be repeat performance by Merck of the portion of such services that constitutes or gives rise to the breach. If in its reasonable opinion Merck is unable to repeat the performance of such services, the parties agree that the sole remedy in such a case is for Merck to refund to the Purchaser all sums paid for the portion of such services. For the avoidance of doubt, the parties agree that Merck 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 contract 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. In any case, the maximum aggregate liability that can be attributed to Merck under this contract is expressly limited to an amount equal to the sums effectively paid to Merck by the Purchaser for services under this contract; provided that any liability for Purchaser’s products in process shall be excluded. Merck makes no other express or implied warranty. Merck will not be in breach of this contract or otherwise liable to the Purchaser for any delay in performance or any nonperformance of any obligations under this contract (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, its affiliates, and their respective 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.

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 Purchaser is licensing software from Merck, including software licensed in connection with the purchase of any products and any and all other Merck software or firmware embedded in, loaded on, or otherwise associated with the purchased products (the software on such media and such other Merck software or firmware being referred to hereinafter together as the “Software”), the terms that are provided with Software shall apply. If there are no terms provided with the Software, the following provisions shall apply.

11.3.1 Merck 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.

11.3.2 The Software and related copyrights are owned by Merck, by an affiliate, and/or by certain suppliers of Merck or their 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, 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) except as may be required by law or as may be necessary for compliance with a third party license agreement, 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 any third party software shall be subject to the terms of any third party license agreements or notices that are provided to Purchaser by Merck 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 in advance.

11.3.6 The Software is covered by the limited warranties applicable for the System set forth in Clause 6 (including all limitations of liability and disclaimers of warranties contained therein) 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, if applicable, and any and all copies thereof or of any other Software to Merck.

11.3.8 Any replacements, fixes or upgrades of the Software which Purchaser may hereafter receive from Merck or an affiliated company of Merck, shall be provided subject to the same restrictions and other provisions contained in this subsection, regardless of whether subsection or these GTC 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 GTC. 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.

11.4 Merck may define certain products as Custom Made-To-Order ("CMO"). Purchaser must provide Merck with product specifications prior to the start of manufacturing a CMO product. Merck and Purchaser shall agree on all respective production and testing techniques prior to the start of manufacturing a CMO product. Purchaser must provide a purchase order detailing product and delivery schedule for reserved products. Purchaser shall purchase the entire lot of the CMO without regard to volume. Purchase orders for CMO products are not cancelable.

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