Terms & Conditions of Sale

Version 3 (07/05/2016)

Terms and Conditions of Sale to End Users and Non-appointed Distributors of Sigma-Aldrich Chemie GmbH (hereinafter “Sigma-Aldrich”)

  Contents
  I.     Application
II.    Product Offering and Modification
III.   Basic Customer Responsibilities
IV.   Offer and Acceptance
V.    Scope of Delivery / Terms of Delivery
VI.   Delivery Time
VII.  Prices and Payment
VIII. Offset
IX.   Transfer of Risk
X.    Storage, Handling and Use of the Products by the Customer
XI.   Information Duty
XII.    Claims for Defect
XIII.   Liability of Sigma-Aldrich
XIV.   Retention of Title
XV.    Patents and Copyrights
XVI.   Technical Assistance
XVII.  Compliance with Laws
XVIII.  Export
XIX.   No Waiver
XX.    Force Majeure
XXI.   Confidentiality
XXII.  Miscellaneous

I. Application

  1. Unless otherwise agreed by an end user or non-appointed distributor and Sigma-Aldrich in writing, these Terms and Conditions shall apply to all sales and deliveries to end users and non-appointed distributors who have not signed an individual purchase agreement or authorized distributor agreement with Sigma-Aldrich (the end user or non-appointed distributor with whom Sigma-Aldrich is contracting is hereinafter referred to as the “Customer”).
  2. These Terms and Conditions shall apply to all business transactions between Sigma-Aldrich and the Customer regardless of whether they are referenced in future purchase orders or order acknowledgements. Contrary, additional or differing terms and conditions of the Customer shall not apply unless agreed to in writing by Sigma-Aldrich. These Terms and Conditions apply even in the event that Sigma-Aldrich makes a delivery to the Customer without reservations while being aware of the Customer’s conflicting or deviating terms and conditions.
  3. Amendments and additions to these Terms and Conditions, including this provision, shall be made in writing.
  4. Rights accorded to the parties by applicable statutory provisions beyond the scope of these Terms and Conditions shall remain unaffected.

II. Product Offering and Modification

Sigma-Aldrich has the right, from time to time, to add, modify or discontinue any product offering.

III. Basic Customer Responsibilities

During the term, the Customer agrees to:

  1. Provide correct information on all purchase orders of Sigma-Aldrich products, including complete product numbers, options, quantities and any special instructions. The Customer assumes sole and absolute liability for any failure, by the Customer, to provide complete and accurate information when ordering products.
  2. Indemnify and hold harmless Sigma-Aldrich and its affiliates, legal successors and assigns from and against all suits, losses, claims, liabilities, costs and expenses (including attorney fees) that Sigma-Aldrich may sustain or incur as a direct result of any claim against Sigma-Aldrich arising directly from any breach of contract, breach of warranty, strict liability in tort or any other theory of law brought by the Customer’s current or former officers, agents, employees, legal successors and assigns, by the Customer’s customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, if and to the extent arising out of the Customer’s breach of its obligations under these Terms and Conditions, the Customer’s intentional misconduct or gross negligence, or under applicable law.
  3. Promptly disclose to Sigma-Aldrich and, upon request by Sigma-Aldrich, grant Sigma-Aldrich a non-exclusive, royalty-free license to make, use and sell worldwide any improvement of Sigma-Aldrich technology (including without limitation any know-how, technical information, computer software and hardware and the like) developed by the Customer; provided that nothing in this provision shall be construed as granting the Customer any right, title or interest (whether direct or indirect) in or any right or license to amend or develop any Sigma-Aldrich technology.
  4. Consistent with the delivery terms set forth in Section V (Scope of Delivery / Terms of Delivery) of these Terms and Conditions, pay any and all taxes, duties, fees, charges, costs and expenses of any type or character whatsoever, accruing, incurred, imposed or assessed in connection with or relating, in any manner whatsoever, to the Customer’s purchase, transportation, storage, distribution, resale, promotion or marketing of Sigma-Aldrich products.
  5. Maintain adequate employer’s liability, product liability, general liability, property and/or other insurance coverage of no less than two million (2,000,000) euros each per occurrence or as required by law. Upon Sigma-Aldrich’s request, the Customer will provide Sigma-Aldrich with adequate evidence of such insurance coverage. This obligation shall survive expiration or termination of the Agreement.

IV. Offer and Acceptance

  1. All purchase orders are subject to acknowledgement by Sigma-Aldrich. No contract is created unless and until acknowledged by Sigma-Aldrich, either by written acknowledgment or by dispatch of the products, and any provision contained in any written communication by the Customer or otherwise, is expressly excluded.
  2. Sigma-Aldrich products shall, at the time of delivery, conform in all material respects to the description of such products provided to the Customer by Sigma-Aldrich through analytical reports, certificates of analysis, technical data sheets or other current product documentation published by Sigma-Aldrich specifically for the products on Sigma-Aldrich’s website or that are included by Sigma-Aldrich in product shipments.
  3. Sigma-Aldrich reserves all rights of ownership in and all intellectual property rights in all offering materials. Such materials shall not be disclosed to any third parties unless otherwise provided in these Terms and Conditions.
  4. Purchase orders are non-binding on Sigma-Aldrich unless and until confirmed by Sigma-Aldrich in writing or Sigma-Aldrich ships the products included in the purchase order. The Customer is bound to its purchase order for two (2) weeks unless withdrawn earlier by written notice to Sigma-Aldrich, provided that the Customer cannot withdraw a purchase order for which Sigma-Aldrich has already shipped the products included therein. All orders are subject to availability. The silence of Sigma-Aldrich with regard to offers, purchase orders, requests or other declarations of the Customer shall not imply consent or agreement unless expressly agreed otherwise in writing. Any acknowledgement of purchase order created electronically which does not include a signature or name shall be deemed to constitute written form.
  5. If an individual purchase order is unilaterally annulled by the Customer or a purchase order or partial purchase order unilaterally cancelled by the Customer, the Customer shall reimburse Sigma-Aldrich all costs resulting from the annulment or cancellation of such purchase order.

V. Scope of Delivery / Terms of Delivery

  1. For the scope of delivery the written acknowledgement of Sigma-Aldrich (or purchase order of the Customer if no acknowledgement is provided) is authoritative. Changes to the scope of delivery shall not be effective unless confirmed in writing by Sigma-Aldrich. Sigma-Aldrich reserves the right to make alterations to the purity or specifications of the products to the extent such alterations are not material.
  2. Sigma-Aldrich is entitled to make partial deliveries in order to perform its contractual obligations unless partial delivery is not of any interest to the Customer and the Customer has referred to this fact in its purchase order.
  3. Unless otherwise separately agreed by the parties, Sigma-Aldrich has the right, in its reasonable discretion, to determine the method of shipment, i.e., delivery can be made by air freight, train, ship or road transport.
  4. All deliveries are made Ex Works (Incoterms 2010) at the production or distribution site specified by Sigma-Aldrich. Sigma-Aldrich reserves the right to charge the Customer for carriage and freight.
  5. Return of the products and a corresponding credit shall only be made with the prior written consent of Sigma-Aldrich and the Customer must comply with all instructions of Sigma-Aldrich with regard to the return of products, including applicable statutory provisions relating to the delivery and packaging of hazardous products.
  6. All delivery obligations of Sigma-Aldrich are subject to the reservation “while stocks last”. Sigma-Aldrich is therefore entitled to terminate any purchase order when stocks available to Sigma-Aldrich are exhausted. If stocks are only partially exhausted and the entire request of goods as described in the purchase order of the Customer cannot be satisfied, Sigma-Aldrich is entitled to distribute the available stocks at its reasonable discretion to one or all customers. If Sigma-Aldrich can only satisfy part of the Customer’s request for goods as described in the purchase order, the Customer is entitled to cancel the purchase order.

VI. Delivery Time

  1. Delivery periods and dates shall be as specified in Sigma-Aldrich’s order acknowledgement. All delivery periods and dates are non-binding estimates unless expressly referred to as binding in the order acknowledgement.
  2. The delivery period shall commence on dispatch of the order acknowledgement by Sigma-Aldrich (or acceptance of the purchase order if no order acknowledgement is provided). In any case, the delivery period shall not commence before the Customer has furnished all documents, permits, approvals, consents and releases to be provided by it, before all technical questions have been clarified and before any agreed down payment has been received. Compliance with the delivery period is subject to timely and proper compliance with all other obligations by the Customer.
  3. The delivery period shall be deemed satisfied if the products have left the facility or Sigma-Aldrich has notified its readiness to dispatch.
  4. In the event of any delay in delivery, the Customer shall be entitled to terminate the purchase order after notifying Sigma-Aldrich of such delay and ten (10) business days in which Sigma-Aldrich can cure the otherwise late delivery. Except as set forth in Section XII of these Terms and Conditions, Sigma-Aldrich shall not be liable for any claims for damages of the Customer for late or delayed delivery.

VII. Prices and Payment

  1. Unless otherwise agreed in writing, the price of delivery shall be paid within thirty (30) days from the date of invoice without any deduction. This also applies to invoices regarding partial deliveries. In case of delay in payment the Customer shall pay interest in default in the amount of eight percent (8%) above the applicable base rate of interest. The right to assert further damages remains unaffected.
  2. The Customer is only entitled to set off counterclaims, if they are final and non-appealable.
  3. Sigma-Aldrich is entitled to deliver against payment in advance before delivering products to the Customer.
  4. All prices are net prices excluding statutory value added tax.
  5. All consumer, sales or indirect taxes, customs, examination and acceptance fees and all other taxes, fees or charges of any kind whatsoever which are imposed by public authorities or allocated to the business transaction between Sigma-Aldrich and the Customer shall be paid by the Customer in addition to the prices indicated on the acknowledgement or the invoice. Sigma-Aldrich is not obliged to notify the Customer of potential taxes, fees or charges that may arise.

VIII. Offset

Sigma-Aldrich may set off any amounts Sigma-Aldrich (or its affiliates) owes to the Customer from time to time against any amounts the Customer owes to Sigma-Aldrich (or its affiliates) from time to time under these Terms and Conditions or otherwise.

IX. Transfer of Risk

  1. Title and risk of loss shall transfer to the Customer as soon as the products have been delivered to the first carrier in accordance with these Terms and Conditions. This shall also apply in case of partial deliveries or if Sigma-Aldrich has assumed additional services such as transport costs. Sigma-Aldrich shall insure the products at the Customer’s request and expense by means of a transport insurance against the risks to be specified by the Customer.
  2. If the Customer defaults in accepting delivery of the products or if the Customer otherwise breaches any duty to cooperate, Sigma-Aldrich shall be entitled to demand compensation for the damages incurred including additional expenses. The risk of accidental loss or of accidental deterioration of quality of the products shall pass to the Customer at the moment of default of acceptance by the Customer. After a reasonable period of time has expired without acceptance, Sigma-Aldrich shall be entitled to otherwise dispose of the products and to supply the Customer within a reasonably extended period.

X. Storage, Handling and Use of the Products by the Customer

  1. The products of Sigma-Aldrich are intended to be used for the purposes of laboratory research and related educational applications and may not be used for any other purpose unless otherwise indicated on the product label, in the catalogues of Sigma-Aldrich or in other documents provided to the Customer. In particular products of Sigma-Aldrich may not be used for in-vitro-diagnostics, in the areas of food production and pharmaceutical products, in medical devices or in cosmetic products. The Customer is obliged to inform its customers of such limitations.
  2. Sigma-Aldrich does not examine the products for their safety and effectiveness when contained or used in food, pharmaceutical products, medical devices, or cosmetics, or for commercial or other applications, unless otherwise declared in the documents provided by Sigma-Aldrich. The Customer shall take reasonable measures to inform its customers about the appropriate use of the products purchased from Sigma-Aldrich (e.g., in its catalogs, website and/or terms and conditions), in particular that they are intended for laboratory use only. The Customer shall take all reasonable measures to inform its customers that they are required to test the identity and quality of the products if they are to be repacked, relabeled or used as starting materials or components for other products (particularly when intended for human, veterinarian, diagnostic or household use). The Customer shall warn and shall take all reasonable measures to inform its customers to warn, their own suppliers and assistance personnel (such as transport workers) against the risks and dangers that may be related to the storage, use or handling of the products.
  3. The products of Sigma-Aldrich may be governed by the Chemicals Ordinance (Verordnung über den Schutz vor gefährlichen Stoffen und Zubereitungen, "Chemikalienverordnung"), the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulations and other regulatory provisions. The Customer is responsible for complying with all regulatory provisions in connection with the storage, handling and use of substances purchased from Sigma-Aldrich.
  4. Supporting documentation requested or required by Sigma-Aldrich or by applicable laws or regulations, such as end-user declarations or licenses shall be maintained by the Customer and made available to Sigma-Aldrich upon request. The Customer shall immediately contact Sigma-Aldrich should it require further information concerning the safe use, storage, handling or transportation of the products.

XI. Information Duty

The Customer shall immediately inform Sigma-Aldrich if it becomes aware of any accidents or incidents in connection with the products which result in personal injury or damage to property; the Customer is obliged to fully cooperate with Sigma-Aldrich in order to clarify and identify the cause of such accidents or incidents. It shall provide Sigma-Aldrich with all explanations, reports and tests which have been made or carried out by the Customer or which have been made available to the Customer by third parties. The provision of such information to and the examination of the same by Sigma-Aldrich do not give rise to liability of Sigma-Aldrich for such accidents or incidents.

XII. Claims for Defect

  1. The rights of the Customer with regard to defects shall be subject to the Customer examining the delivered products upon receipt and notifying Sigma-Aldrich in writing of any defects no later than two (2) weeks after receipt of the products. Hidden defects shall be notified to Sigma-Aldrich in writing immediately after their discovery. The Customer shall describe the defects in writing.
  2. In the event of defects in the products, Sigma-Aldrich shall be entitled, at its own discretion, to perform subsequently by remedying the defect or by delivering a defect-free product. The expenses necessary for the subsequent performance shall be borne by Sigma-Aldrich in as far as these expenses are not increased as a result of the products being taken to a location other than the delivery address. Labor and material costs that the Customer claims in this regard shall be calculated at cost.
  3. If Sigma-Aldrich is not willing or able to perform subsequently, the Customer shall be entitled to terminate the purchase order. The same shall apply if the subsequent performance fails, if the Customer cannot be reasonably expected to accept it or if it is delayed beyond reasonable deadlines for reasons for which Sigma-Aldrich can be held responsible. The right of the Customer to terminate the purchase order shall be excluded if (i) the Customer is unable to return the defective products and this inability is not due to the fact that the return of the products is impossible due to the nature of the product or reasons for which Sigma-Aldrich is responsible or (ii) the defect only showed during the processing or conversion of the products.
  4. In the event of a violation of any intellectual property rights of a third party by the delivered products within Switzerland, Sigma-Aldrich shall in its sole discretion and at its sole cost alter or exchange the products in a manner that no longer violates any third party rights while the products continue to fulfill the contractually agreed function. Alternatively, Sigma-Aldrich shall provide the right of use to the Customer by entering into a license agreement. If Sigma-Aldrich fails in doing so within a reasonable period of time, the Customer is entitled to terminate the purchase order. Under the conditions set forth above, Sigma-Aldrich shall also be entitled to terminate the individual purchase order.
  5. The obligations set forth in paragraph 4 of this Section XII of these Terms and Conditions shall only exist if:
    i. the Customer immediately informs Sigma-Aldrich of any asserted violation of intellectual property rights;
    ii. the Customer reasonably supports Sigma-Aldrich in defending the asserted claims and in allowing Sigma-Aldrich
       the measures to modify the product pursuant to Section XII, paragraph 4 of these Terms and Conditions;
    iii. all measures of defense, including out-of-court settlement, shall remain reserved to Sigma-Aldrich;
    iv. the defect of title does not result from an instruction of the Customer; and
    v. the violation of right was not caused by the fact that the Customer has modified the delivered products
       without authorization or used them in a manner in breach of these Terms and Conditions.
  6. Notwithstanding any provision in these Terms and Conditions to the contrary, the period of limitation for claims for defects by the Customer shall be twelve (12) months from the date of delivery. Such period shall also apply to tort claims based on a product defect unless otherwise stipulated by applicable law. The period of limitation begins with the delivery of the products. A statement by Sigma-Aldrich concerning a claim asserted by the Customer based on a defect is not to be deemed an entry into negotiations concerning the claim or the circumstances giving rise to the claim if the claim is fully denied by Sigma-Aldrich.

XIII. Liability of Sigma-Aldrich

  1. Sigma-Aldrich shall not in any event be liable and does not in any event be liable and does not indemnify the Customer for incidental, indirect, consequential or special damages of any kind resulting from any use or failure of the products, even if Sigma-Aldrich has been advised of the possibility of such damage including, without limitation, liability for loss of use, loss of work in progress, down time, loss of revenue, profits or goodwill, failure to realize savings or for any labor or any other expense, damage or loss occasioned by such product including to the extent legally possible personal injury, death or property damage unless such personal injury or death is caused by Sigma-Aldrich’s gross negligence or intentional misconduct and the Customer hereby confirms that it shall indemnify and hold Sigma-Aldrich and its legal successors and assigns harmless from and against any such expense, damage or loss.
  2. Except as expressly provided otherwise in writing, Sigma-Aldrich makes no warranties or representations, express or implied, whether by statute or otherwise, including any warranties of merchantability, satisfactory quality or fitness for a particular purpose with respect to any product. All such warranties are expressly disclaimed and excluded to the maximum extent permitted by applicable law. In particular analytical reports and other descriptions of products in certificates of analysis, catalogs, technical data sheets or other provided product documentation are only approximate and shall not constitute a warranty of any characteristics of the products unless a managing director (Geschäftsführer) of Sigma-Aldrich has expressly qualified a description of a product as warranty of agreement of certain characteristics and so notified the Customer in writing.
  3. Sigma-Aldrich’s sole and exclusive liability with respect to products proved to Sigma-Aldrich’s reasonable satisfaction to be defective or nonconforming shall be, in Sigma-Aldrich’s sole discretion, either: replacement of such products without charge or refund of the purchase price upon the return of such products in accordance with Section XIII of the Terms and Conditions and Sigma-Aldrich’s instructions. In no event shall Sigma-Aldrich be liable to the Customer for any amount in excess of the purchase price paid by the Customer for the applicable products.       
  4. All claims on Sigma-Aldrich for liability under this under this Terms and Conditions expire if not properly lodged against Sigma-Aldrich within twelve (12) months from the moment the liability arises. Any mandatory statutory liability, including for product defects according to the product liability act (Bundesgesetz über die Produktehaftpflicht), shall remain unaffected.

XIV. Retention of Title

  1. Until full payment of all outstanding claims of Sigma-Aldrich resulting from the business relationship with the Customer, Sigma-Aldrich shall retain title to the delivered products. The Customer is obliged to handle the products subject to retention of title with due care. In particular, the Customer is obliged to sufficiently insure the products at their replacement value against fire, water and theft at its own cost and to keep them duly individualized and separated from any other products stored by the Customer.
  2. The Customer may resell products subject to retention of title only in the ordinary course of its business. The Customer shall not be entitled to pledge the products subject to retention of title, transfer them by way of security or otherwise dispose of them in a manner which may jeopardize the ownership of Sigma-Aldrich. In the event of seizure or other interventions by third parties the Customer shall immediately inform Sigma-Aldrich in writing and provide all necessary information, and the Customer shall inform the third party of the ownership rights of Sigma-Aldrich and assist Sigma-Aldrich with all measures taken for the protection of the products subject to retention of title. The costs incurred shall be borne by the Customer.
  3. The Customer hereby assigns all claims resulting from the resale of products including all ancillary rights to Sigma-Aldrich, regardless of whether the products subject to retention of title have been processed or not. Sigma-Aldrich hereby accepts this assignment. The Customer has a revocable right to collect the claims assigned to Sigma-Aldrich in its own name in trust on behalf of Sigma-Aldrich. The collected amounts shall be passed on to Sigma-Aldrich without delay. Sigma-Aldrich shall be entitled to revoke the authorization to collect claims and the right to resell the products of the Customer if the Customer does not properly comply with its payment obligations towards Sigma-Aldrich, defaults in payment, ceases payments, or if any action is taken by or against the Customer under applicable insolvency legislation.
  4. In the event of default in payment by the Customer, Sigma-Aldrich shall be entitled, without prejudice to its other rights, to take back the products subject to retention of title and, after timely warning, be entitled to use the products subject to retention of title elsewhere for the purpose of satisfying its due claims against the Customer. In addition, Sigma-Aldrich shall, after expiry of a reasonable deadline, be entitled to terminate the individual purchase order. The Customer shall grant Sigma-Aldrich immediate access to the products subject to retention of title, and shall surrender the products.
  5. The processing or conversion of the products subject to retention of title by the Customer shall always be performed on behalf of Sigma-Aldrich. The Customer’s contingent right to the products subject to retention of title is continued with regard to the processed or converted goods. If the products are processed together with other items not belonging to Sigma-Aldrich, Sigma-Aldrich shall be entitled to shared ownership in the new items in proportion of the value of the delivered products to the value of the other processed items at the time of processing. As regards the items created by processing or conversion, the same conditions shall apply as for the products subject to retention of title.
  6. Upon the Customer’s request, Sigma-Aldrich may, at its own discretion, release specified products from its retention of title rights to the extent that the realizable value of such products exceeds the claims of Sigma-Aldrich resulting from the business relationship with the Customer by more than twenty percent (20%). For the purposes of valuation, the invoiced value of the products subject to retention of title and the nominal value of the claims shall be authoritative.
  7. The provisions in Section IX of these Terms and Conditions (Transfer of Risk) shall remain unaffected by the provisions of this Section XIV (Retention of Title).

XV. Patents and Copyrights

The Customer agrees that it will not, directly or indirectly, apply for, take out, maintain, or otherwise acquire any patents, utility models, registered designs or copyrights (or any similar intellectual property rights capable of registration) in any country, on the basis of confidential information obtained by the Customer from Sigma-Aldrich (or any of Sigma-Aldrich’s affiliates).

XVI. Technical Assistance

At the Customer’s request, Sigma-Aldrich may, at its discretion, furnish technical assistance and information with respect to possible applications and technical specifications of its product free of cost unless fees have been agreed in the individual case. By providing advice and information Sigma-Aldrich does not assume any warranty, express or implied, for technical specifications, use, selection or suitability of the products. In particular, Sigma-Aldrich does not assume any warranty that certain chemical reactions which have been presented are feasible. Section XIII (Liability of Sigma-Aldrich) of these Terms and Conditions shall apply accordingly.

XVII. Compliance with Laws

  1. The Customer shall conduct its operations in compliance with all applicable laws and regulations of all jurisdictions having contact with the transactions contemplated by the Agreement, including, without limitation, any European Union (“EU”) legislation, and shall indemnify and hold Sigma-Aldrich and its legal successors and assigns harmless from and against any liability for failure to do so. The Customer will, without limitation, obtain and maintain, at the Customer’s expense, all licenses, permits, registrations, authorizations, certificates, consents, waivers, receipts, qualifications, clearances and approvals of any type or character whatsoever (whether public or private) as needed to authorize, without limitation: (i) the parties’ adherence to these Terms and Conditions and performance hereunder; and (ii) the Customer’s import, export, storage, distribution, use, marketing, transportation and sale of the products.
  2. Without limiting anything in the preceding paragraph: (i) the Customer acknowledges that Sigma-Aldrich (and its affiliates) is bound by a corporate policy of ethical and legal conduct (the “Policy”), as well as United States (“U.S.”) law, including the Foreign Corrupt Practices Act of 1977, as amended (the “Act”); and (ii) the Customer agrees not to engage in any activity in violation of the provisions of the Policy, the Act or any other applicable laws or regulations prohibiting unfair, fraudulent or corrupt business practices, including legal requirements designed to combat terrorism and terrorist activities.

XVIII. Export

  1. The Customer acknowledges that the products may be subject to export and economic sanctions restrictions of the EU, Switzerland, U.S. and other countries ("Export Regulations"). The Customer represents and warrants that it will not use, transfer, release, export or re-export or take any action that could result in the diversion of any Sigma-Aldrich products or items containing or incorporating any Sigma-Aldrich products in violation of applicable Export Regulations. The Customer shall screen parties to export transactions against applicable sanctions and denial lists and inform Sigma-Aldrich if any proposed transaction involves parties on those lists or sanctioned destinations. The Customer shall obtain any approvals that may be required.
  2. The Customer is prohibited from selling or providing products of Sigma-Aldrich to any third party if such products are excluded from delivery according to Swiss, EU or U.S. export regulations.
  3. If U.S. export controls require a license for the export of one or more of the products (or any part thereof or relating thereto) or any other products or services sold under these Terms and Conditions (i) Sigma-Aldrich’s obligations under these Terms and Conditions are subject to the condition precedent of the grant of such export license and (ii) the Customer shall not transfer or dispose of any such products or related software, know-how, technical data, documentation, products, services or other materials to any party or in any manner which would constitute a violation of U.S. export controls.
  4. Breach of this section will entitle Sigma-Aldrich immediately to terminate the individual purchase order and/or the respective contract.

XIX. No Waiver

No delay on the part of Sigma-Aldrich in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by Sigma-Aldrich of any right or remedy shall preclude such party from any further exercise of the right or remedy, or the exercise of any other right or remedy.

XX. Force Majeure

  1. If Sigma-Aldrich is prevented by force majeure from performing its contractual obligations, in particular from delivering the products, Sigma-Aldrich will be released from its obligation to perform for the duration of the impediment and for a reasonable start-up period without being liable towards the Customer for damages. The same applies if the performance of its obligations by Sigma-Aldrich is unreasonably impeded or becomes temporarily impossible because of unforeseeable circumstances for which Sigma-Aldrich is not responsible. Such causes include, but are not limited to, acts of God, actions of the elements, including floods and other natural disasters, fires, explosions, lockouts, strikes, wars, riots, civil commotion, epidemic, embargoes, failure to obtain export licenses or import authorizations, transportation delays and acts of government, energy shortfalls, suppliers’ delivery problems or substantial interruptions of operations except as may be specifically provided for elsewhere in these Terms and Conditions. Sigma-Aldrich shall promptly notify the Customer of such interference, including, without limitation, a detailed description thereof, the date of commencement of such interference and the estimated duration thereof.
  2. Sigma-Aldrich shall be entitled to terminate the purchase order if such interference persists for more than ninety (90) days and Sigma-Aldrich has no longer an interest in performance of the purchase order due to such interference. After expiration of such period, at the Customer’s request, Sigma-Aldrich shall declare whether it intends to exercise its rescission right or deliver the products within a reasonable period of time.
  3. In no event shall Sigma-Aldrich be liable to the Customer for any claims, damages, costs or expenses arising out of or related to Sigma-Aldrich’s inability to timely ship products or fulfill purchase orders due to a force majeure event.

XXI. Confidentiality

The Customer agrees for itself and its employees, agents and representatives that the Customer shall not disclose to any third party and shall maintain as confidential, any and all confidential information provided to the Customer by Sigma-Aldrich. Such confidential information shall include, without limitation, information concerning Sigma-Aldrich’s or its affiliates’ business, finances, proposed products, product development, marketing and/or sales plans, special project pricing, purchase orders, business or operational know-how and any other information deemed confidential by Sigma-Aldrich.

XXII. Miscellaneous    

  1. The captions in these Terms and Conditions are for convenience only and do not affect the interpretation of these Terms and Conditions.
  2. The parties’ obligations under Sections XII (Claims for Defect), XIII (Liability of Sigma-Aldrich), XXI (Confidentiality) and XXII (Miscellaneous) of these Terms and Conditions shall survive the expiration or termination of the parties’ relationship.
  3. Place of performance for all obligations of the Customer and Sigma-Aldrich is the place of business of Sigma-Aldrich.
  4. The legal relationship between the Customer and Sigma-Aldrich shall be governed by and construed in accordance with the laws of Switzerland, without giving effect to the conflict of law provisions thereof, as well as, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  5. The exclusive legal venue for all disputes arising from the business relationship between Sigma-Aldrich and the Customer is the place of business of Sigma-Aldrich. Sigma-Aldrich shall also be entitled to bring legal actions at the place of business of the Customer or any other applicable and permissible legal venue.
  6. The Customer shall pay Sigma-Aldrich all damages, costs and expenses (including reasonable attorney’s fees) incurred by Sigma-Aldrich in obtaining injunctive or other relief for the enforcement of any provision of these Terms and Conditions.
  7. If any provision of these Terms and Conditions should be or become wholly or partially void, ineffective or unenforceable, the validity, effectiveness and enforceability of the other provisions of these Terms and Conditions shall not be affected thereby. Any such void, ineffective or unenforceable provision shall be deemed replaced by such valid, effective and enforceable provision as comes closest to the economic intent and purpose of the void, ineffective or unenforceable provision.

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Terms and Conditions of Sale to Authorized Distributors of Sigma-Aldrich Chemie GmbH (hereinafter “Sigma-Aldrich”)

  Contents
  I.     Application
II.    Product Offering and Modification
III.   Basic Customer Responsibilities
IV.   Offer and Acceptance
V.    Scope of Delivery / Terms of Delivery
VI.   Delivery Time
VII.  Prices and Payment
VIII. Offset
IX.   Transfer of Risk
X.    Storage, Handling and Use of the Products by the Customer
XI.   Information Duty
XII.    Claims for Defect
XIII.   Liability of Sigma-Aldrich
XIV.   Retention of Title
XV.    Patents and Copyrights
XVI.   Technical Assistance
XVII.  Compliance with Laws
XVIII.  Export
XIX.   No Waiver
XX.    Force Majeure
XXI.   Confidentiality
XXII.  Miscellaneous

I. Application

  1. Unless otherwise agreed by an authorized distributor and Sigma-Aldrich in writing, these Terms and Conditions shall apply to authorized distributors who have signed an authorized distributor agreement (the “Authorized Distributor Agreement,” together with these Terms and Conditions hereinafter referred to as the “Agreement”) with Sigma-Aldrich.  In case of conflict between the Authorized Distributor Agreement and these Terms and Conditions, the Authorized Distributor Agreement shall prevail.
  2. These Terms and Conditions shall apply to all business transactions between Sigma-Aldrich and the Distributor regardless of whether they are referenced in future purchase orders or order acknowledgements.  Contrary, additional or differing terms and conditions of the Distributor shall not apply unless agreed to in writing by Sigma-Aldrich.  These Terms and Conditions apply even in the event that Sigma-Aldrich makes a delivery to the Distributor without reservations while being aware of the Distributor’s conflicting or deviating terms and conditions.
  3. Amendments and additions to the Agreement, including to this provision, shall be made in writing.
  4. Rights accorded to the parties by applicable statutory provisions beyond the scope of these Terms and Conditions shall remain unaffected.

II. Product Offering and Modification

Sigma-Aldrich has the right, from time to time, to add, modify or discontinue any product offering.

III. Basic Distributor Responsibilities

During the Term, the Distributor agrees to:

  1. Provide correct information on all purchase orders of Sigma-Aldrich products, including complete product numbers, options, quantities and any special instructions.  The Distributor assumes sole and absolute liability for any failure, by the Distributor, to provide complete and accurate information when ordering products.
  2. Indemnify and hold harmless Sigma-Aldrich and its affiliates, legal successors and assigns from and against all suits, losses, claims, liabilities, costs and expenses (including attorney fees) that Sigma-Aldrich may sustain or incur as a result of any claim against Sigma-Aldrich arising directly from any breach of contract, breach of warranty, strict liability in tort or any other theory of law brought by the Distributor’s current or former officers, agents, employees, legal successors and assigns, by the Distributor’s customers, by end users, by auxiliary personnel (such as freight handlers, etc.) or by other third parties, if and to the extent arising out of the Distributor’s breach of its obligations under the Agreement, the Distributor’s intentional misconduct or gross negligence, or under applicable law.
  3. Promptly disclose to Sigma-Aldrich and, upon request by Sigma-Aldrich, grant Sigma-Aldrich a non-exclusive, royalty-free license to make, use and sell worldwide any improvement of Sigma-Aldrich technology (including without limitation any know-how, technical information, computer software and hardware and the like) developed by the Distributor; provided that nothing in this provision shall be construed as granting the Distributor any right, title or interest (whether direct or indirect) in or any right or license to amend or develop any Sigma-Aldrich technology.
  4. Consistent with the delivery terms set forth in Section V of these Terms and Conditions, pay any and all taxes, duties, fees, charges, costs and expenses of any type or character whatsoever, accruing, incurred, imposed or assessed in connection with or relating, in any manner whatsoever, to the Distributor’s purchase, transportation, storage, distribution, resale, promotion or marketing of Sigma-Aldrich products.
  5. Maintain adequate employer’s liability, product liability, general liability, property and/or other insurance coverage of no less than two million (2,000,000) euros each per occurrence or as required by law.  Upon Sigma-Aldrich’s request, the Distributor will provide Sigma-Aldrich with adequate evidence of such insurance coverage.  This obligation shall survive expiration or termination or the Agreement.

IV. Offer and Acceptance

  1. All purchase orders are subject to acknowledgement by Sigma-Aldrich.  No contract is created unless and until acknowledged by Sigma-Aldrich, either by written acknowledgment or by dispatch of the products, and any provision contained in any written communication by the Distributor or otherwise, is expressly excluded.
  2. Sigma-Aldrich products shall, at the time of delivery, conform in all material respects to the description of such products provided to the Distributor by Sigma-Aldrich through analytical reports, certificates of analysis, technical data sheets or other current product documentation published by Sigma-Aldrich specifically for the products on Sigma-Aldrich’s website or that are included by Sigma-Aldrich in product shipments.
  3. Sigma-Aldrich reserves all rights of ownership in and all intellectual property rights in all offering materials. Such materials shall not be disclosed to any third parties unless otherwise provided in the Agreement.
  4. Purchase orders are non-binding on Sigma-Aldrich unless and until confirmed by Sigma-Aldrich in writing or Sigma-Aldrich ships the products included in the purchase order.  The Distributor is bound to its purchase order for two (2) weeks unless withdrawn earlier by written notice to Sigma-Aldrich, provided that the  Distributor cannot withdraw a purchase order for which Sigma-Aldrich has already shipped the products included therein.  All orders are subject to availability.  The silence of Sigma-Aldrich with regard to offers, purchase orders, requests or other declarations of the Distributor shall not imply consent or agreement unless expressly agreed otherwise in writing.  Any acknowledgement of purchase order created electronically which does not include a signature or name shall be deemed to constitute written form.
  5. If an individual purchase order is unilaterally annulled by the Distributor or a purchase order or partial purchase order unilaterally cancelled by the Distributor, the Distributor shall reimburse Sigma-Aldrich all costs resulting from the annulment or cancellation of such purchase order.

V. Scope of Delivery / Terms of Delivery

  1. For the scope of delivery the written acknowledgement of Sigma-Aldrich (or purchase order of the Distributor if no acknowledgement is provided) is authoritative.  Changes to the scope of delivery shall not be effective unless confirmed in writing by Sigma-Aldrich.  Sigma-Aldrich reserves the right to make alterations to the purity or specifications of the products to the extent such alterations are not material.
  2. Sigma-Aldrich is entitled to make partial deliveries in order to perform its contractual obligations unless partial delivery is not of any interest to the Distributor and the Distributor has referred to this fact in its purchase order.
  3. Unless otherwise separately agreed by the parties, Sigma-Aldrich has the right, in its reasonable discretion, to determine the method of shipment, i.e., delivery can be made by air freight, train, ship or road transport.
  4. All deliveries are made Ex Works (Incoterms 2010) at the production or distribution site specified by Sigma-Aldrich.  Sigma-Aldrich reserves the right to charge the Distributor for carriage and freight.
  5. Return of the products and a corresponding credit shall only be made with the prior written consent of Sigma-Aldrich and the Distributor must comply with all instructions of Sigma-Aldrich with regard to the return of products, including applicable statutory provisions relating to the delivery and packaging of hazardous products.
  6. All delivery obligations of Sigma-Aldrich are subject to the reservation “while stocks last”.  Sigma-Aldrich is therefore entitled to terminate any purchase order when stocks available to Sigma-Aldrich are exhausted.  If stocks are only partially exhausted and the entire request of goods as described in the purchase order of the Distributor cannot be satisfied, Sigma-Aldrich is entitled to distribute the available stocks at its reasonable discretion to one or all customers.  If Sigma-Aldrich can only satisfy part of the Distributor’s request for goods as described in the purchase order, the Distributor is entitled to cancel the purchase order.

VI. Delivery Time

  1. Delivery periods and dates shall be as specified in Sigma-Aldrich’s order acknowledgement.  All delivery periods and dates are non-binding estimates unless expressly referred to as binding in the order acknowledgement.
  2. The delivery period shall commence on dispatch of the order acknowledgement by Sigma-Aldrich (or acceptance of the purchase order if no order acknowledgement is provided).  In any case, the delivery period shall not commence before the Distributor has furnished all documents, permits, approvals, consents and releases to be provided by it, before all technical questions have been clarified and before any agreed down payment has been received.  Compliance with the delivery period is subject to timely and proper compliance with all other obligations by the Distributor.
  3. The delivery period shall be deemed satisfied if the products have left the facility or Sigma-Aldrich has notified its readiness to dispatch.
  4. In the event of any delay in delivery, the Distributor shall be entitled to terminate the purchase order after notifying Sigma-Aldrich of such delay and ten (10) business days in which Sigma-Aldrich can cure the otherwise late delivery.  Except as set forth in Section XIII of these Terms and Conditions, Sigma-Aldrich shall not be liable for any claims for damages of the Distributor for late or delayed delivery.

VII. Prices and Payment

  1. Unless otherwise agreed in writing, the price of delivery shall be paid within thirty (30) days from the date of invoice without any deduction.  This also applies to invoices regarding partial deliveries.  In case of delay in payment the Distributor shall pay interest in default in the amount of eight percent (8%) above the applicable base rate of interest.  The right to assert further damages remains unaffected.
  2. The Distributor is only entitled to set off counterclaims if they are final and non-appealable.
  3. Sigma-Aldrich is entitled to deliver against payment in advance before delivering products to the Distributor.
  4. All prices are net prices excluding statutory value added tax.
  5. All consumer, sales or indirect taxes, customs, examination and acceptance fees and all other taxes, fees or charges of any kind whatsoever which are imposed by public authorities or allocated to the business transaction between Sigma-Aldrich and the Distributor shall be paid by the Distributor in addition to the prices indicated on the acknowledgment or the invoice.  Sigma-Aldrich is not obliged to notify the Distributor of potential taxes, fees or charges that may arise.

VIII. Offset

  1. Sigma-Aldrich may set off any amounts Sigma-Aldrich (or its affiliates) owes to the Distributor from time to time against any amounts the Distributor owes to Sigma-Aldrich (or its affiliates) from time to time under the terms of the Agreement or otherwise.

IX. Transfer of Risk

  1. Title and risk of loss shall transfer to the Distributor as soon as the products have been delivered to the first carrier in accordance with these Terms and Conditions.  This shall also apply in case of partial deliveries or if Sigma-Aldrich has assumed additional services such as transport costs.  Sigma-Aldrich shall insure the products at the Distributor’s request and expense by means of a transport insurance against the risks to be specified by the Distributor.
  2. If the Distributor defaults in accepting delivery of the products or if the Distributor otherwise breaches any duty to cooperate, Sigma-Aldrich shall be entitled to demand compensation for the damages incurred including additional expenses.  The risk of accidental loss or of accidental deterioration of quality of the products shall pass to the Distributor at the moment of default of acceptance by the Distributor.  After a reasonable period of time has expired without acceptance, Sigma-Aldrich shall be entitled to otherwise dispose of the products and to supply the Distributor within a reasonably extended period.

X. Storage, Handling and Use of the Products by the Distributor

  1. The products of Sigma-Aldrich are intended to be used for the purposes of laboratory research and related educational applications and may not be used for any other purpose unless otherwise indicated on the product label, in the catalogues of Sigma-Aldrich or in other documents provided to the Distributor.  In particular products of Sigma-Aldrich may not be used for in-vitro-diagnostics, in the areas of food production and pharmaceutical products, in medical devices or in cosmetic products.  The Distributor is obliged to inform its customers of such limitations.
  2. Sigma-Aldrich does not examine the products for their safety and effectiveness when contained or used in food, pharmaceutical products, medical devices, or cosmetics, or for commercial or other applications, unless otherwise declared in the documents provided by Sigma-Aldrich.  The Distributor shall take reasonable measures to inform its customers about the appropriate use of the products purchased from Sigma-Aldrich (e.g., in its catalogs, website and/or terms and conditions), in particular that they are intended for laboratory use only.  The Distributor shall take all reasonable measures to inform its customers that they are required to test the identity and quality of the products if they are to be repacked, relabeled or used as starting materials or components for other products (particularly when intended for human, veterinarian, diagnostic or household use).  The Distributor shall warn, and shall take all reasonable measures to inform its customers to warn, their own suppliers and assistance personnel (such as transport workers) against the risks and dangers that may be related to the storage, use or handling of the products.
  3. The products of Sigma-Aldrich may be governed by the Chemicals Ordinance (Verordnung über den Schutz vor gefährlichen Stoffen und Zubereitungen, "Chemikalienverordnung") the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) Regulations and other regulatory provisions.  The Distributor and its customers are responsible for complying with all regulatory provisions in connection with the storage, handling and use of substances purchased from Sigma-Aldrich and the Distributor shall inform customers of such duty.
  4. Supporting documentation requested or required by Sigma-Aldrich or by applicable laws or regulations, such as end-user declarations or licenses shall be maintained by the Distributor and made available to Sigma-Aldrich upon request.  The Distributor shall immediately contact Sigma-Aldrich should it require further information concerning the safe use, storage, handling or transportation of the products.

XI. Information Duty

The Distributor shall immediately inform Sigma-Aldrich if it becomes aware of any accidents or incidents in connection with the products which result in personal injury or damage to property; the Distributor is obliged to fully cooperate with Sigma-Aldrich in order to clarify and identify the cause of such accidents or incidents.  It shall provide Sigma-Aldrich with all explanations, reports and tests which have been made or carried out by the Distributor or which have been made available to the Distributor by third parties.  The provision of such information to and the examination of the same by Sigma-Aldrich do not give rise to liability of Sigma-Aldrich for such accidents or incidents.

XII. Claims for Defect

  1. The rights of the Distributor with regard to defects shall be subject to the Distributor examining the delivered products upon receipt and notifying Sigma-Aldrich in writing of any defects no later than two (2) weeks after receipt of the products.  Hidden defects shall be notified to Sigma-Aldrich in writing immediately after their discovery.  The Distributor shall describe the defects in writing.
  2. In the event of defects in the products, Sigma-Aldrich shall be entitled, at its own discretion, to perform subsequently by remedying the defect or by delivering a defect-free product.  The expenses necessary for the subsequent performance shall be borne by Sigma-Aldrich in as far as these expenses are not increased as a result of the products being taken to a location other than the delivery address.  Labor and material costs that the Distributor claims in this regard shall be calculated at cost.
  3. If Sigma-Aldrich is not willing or able to perform subsequently, the Distributor shall be entitled to terminate the purchase order.  The same shall apply if the subsequent performance fails, if the Distributor cannot be reasonably expected to accept it or if it is delayed beyond reasonable deadlines for reasons for which Sigma-Aldrich can be held responsible.  The right of the Distributor to terminate the purchase order shall be excluded if (i) the Distributor is unable to return the defective products and this inability is not due to the fact that the return of the products is impossible due to the nature of the product or reasons for which Sigma-Aldrich is responsible or (ii) the defect only showed during the processing or conversion of the products.
  4. In the event of a violation of any intellectual property rights of a third party by the delivered products within the Trading Area as defined in the Authorized Distributor Agreement, Sigma-Aldrich shall in its sole discretion and at is sole cost alter or exchange the products in a manner that no longer violates any third party rights while the products continue to fulfill the contractually agreed function.  Alternatively, Sigma-Aldrich shall provide the right of use to the Distributor by entering into a license agreement.  If Sigma-Aldrich fails in doing so within a reasonable period of time, the Distributor is entitled to terminate the purchase order.  Under the conditions set forth above, Sigma-Aldrich shall also be entitled to terminate the individual purchase order.
  5. The obligations set forth in paragraph 4 of this Section XII shall only exist if:
    i. the Distributor immediately informs Sigma-Aldrich of any asserted violation of intellectual property rights;
    ii. the Distributor reasonably supports Sigma-Aldrich in defending the asserted claims and in allowing Sigma-Aldrich
       the measures to modify the product pursuant to Section XII, paragraph 4 of these Terms and Conditions;
    iii. all measures of defense, including out-of-court settlement, shall remain reserved to Sigma-Aldrich;
    iv. the defect of title does not result from an instruction of the Distributor; and
    v. the violation of right was not caused by the fact that the Distributor has modified the delivered products
        without authorization or used them in a manner in breach of the Agreement.
  6. Notwithstanding any provision in the Agreement to the contrary, the period of limitation for claims for defects by the Distributor shall be twelve (12) months from the date of delivery.  Such period shall also apply to tort claims based on a product defect unless otherwise stipulated by applicable law.  The period of limitation begins with the delivery of the products.  A statement by Sigma-Aldrich concerning a claim asserted by the Distributor based on a defect is not to be deemed an entry into negotiations concerning the claim or the circumstances giving rise to the claim if the claim is fully denied by Sigma-Aldrich.

XIII. Liability of Sigma-Aldrich

  1. Sigma-Aldrich shall not in any event be liable and does not indemnify the distributor for incidental, indirect, consequential or special damages of any kind resulting from any use or failure of the products, even if Sigma-Aldrich has been advised of the possibility of such damage including, without limitation, liability for loss of use, loss of work in progress, down time, loss of revenue, profits or goodwill, failure to realize savings, loss of products of the distributor or other use or any liability of the distributor to a third party on account of such loss, or for any labor or any other expense, damage or loss occasioned by such product including to the extent legally possible personal injury, death or property damage unless such personal injury or death is caused by Sigma-Aldrich’s gross negligence or intentional misconduct, and the distributor hereby confirms that it shall indemnify and hold Sigma-Aldrich and its legal successors and assigns harmless from and against any such expense, damage or loss.
  2. Except as expressly provided in the Authorized Distributor Agreement, Sigma-Aldrich makes no warranties or representations, express or implied, whether by statute or otherwise, including any warranties of merchantability, satisfactory quality or fitness for a particular purpose with respect to any product.  All such warranties are expressly disclaimed and excluded to the maximum extent permitted by applicable law.  The liability of Sigma-Aldrich shall not be expanded, modified or otherwise altered by any warranty offered by the Distributor for the products.
  3. Sigma-Aldrich’s sole and exclusive liability and the Distributor’s exclusive remedy with respect to products proved to Sigma-Aldrich’s reasonable satisfaction to be defective or nonconforming shall be, in Sigma-Aldrich’s sole discretion, either:  (i) replacement of such products without charge or refund of the purchase price upon the return of such products in accordance with Section XIII of these Terms and Conditions and Sigma-Aldrich’s instructions; or (ii) refund of the purchase price to the Distributor.  In no event shall Sigma-Aldrich be liable to the Distributor for any amounts in excess of the purchase price paid by the Distributor for the applicable Products.
  4. All claims on Sigma-Aldrich for liability under this Agreement expire if not properly lodged against Sigma-Aldrich within twelve (12) months from the moment the liability arises.  Any mandatory statutory liability, including for product defects according to the product liability act (Bundesgesetz über die Produktehaftpflicht),shall remain unaffected.

XIV. Retention of Title

  1. Until full payment of all outstanding claims of Sigma-Aldrich resulting from the business relationship with the Distributor, Sigma-Aldrich shall retain title to the delivered products.  The Distributor is obliged to handle the products subject to retention of title with due care.  In particular, the Distributor is obliged to sufficiently insure the products at their replacement value against fire, water and theft at its own cost and to keep them duly individualized and separated from any other products stored by the Distributor.
  2. The Distributor may resell products subject to retention of title only in the ordinary course of its business.  The Distributor shall not be entitled to pledge the products subject to retention of title, transfer them by way of security or otherwise dispose of them in a manner which may jeopardize the ownership of Sigma-Aldrich.  In the event of seizure or other interventions by third parties the Distributor shall immediately inform Sigma-Aldrich in writing and provide all necessary information, and the Distributor shall inform the third party of the ownership rights of Sigma-Aldrich and assist Sigma-Aldrich with all measures taken for the protection of the products subject to retention of title.  The costs incurred shall be borne by the Distributor.
  3. The Distributor hereby assigns all claims resulting from the resale of products including all ancillary rights to Sigma-Aldrich, regardless of whether the products subject to retention of title have been processed or not.  Sigma-Aldrich hereby accepts this assignment.  The Distributor has a revocable right to collect the claims assigned to Sigma-Aldrich in its own name in trust on behalf of Sigma-Aldrich.  The collected amounts shall be passed on to Sigma-Aldrich without delay.  Sigma-Aldrich shall be entitled to revoke the authorization to collect claims and the right to resell the products of the Distributor if the Distributor does not properly comply with its payment obligations towards Sigma-Aldrich, defaults in payment, ceases payments, or if any action is taken by or against the Distributor under applicable insolvency legislation.
  4. In the event of default in payment by the Distributor, Sigma-Aldrich shall be entitled, without prejudice to its other rights, to take back the products subject to retention of title and, after timely warning, be entitled to use the products subject to retention of title elsewhere for the purpose of satisfying its due claims against the Distributor.  In addition, Sigma-Aldrich shall, after expiry of a reasonable deadline, be entitled to terminate the individual purchase order.  The Distributor shall grant Sigma-Aldrich immediate access to the products subject to retention of title, and shall surrender the products.
  5. The processing or conversion of the products subject to retention of title by the Distributor shall always be performed on behalf of Sigma-Aldrich.  The Distributor’s contingent right to the products subject to retention of title is continued with regard to the processed or converted goods.  If the products are processed together with other items not belonging to Sigma-Aldrich, Sigma-Aldrich shall be entitled to shared ownership in the new items in proportion of the value of the delivered products to the value of the other processed items at the time of processing.  As regards the items created by processing or conversion, the same conditions shall apply as for the products subject to retention of title.
  6. Upon the Distributor’s request, Sigma-Aldrich may, at its own discretion, release specified products from its retention of title rights to the extent that the realizable value of such products exceeds the claims of Sigma-Aldrich resulting from the business relationship with the Distributor by more than twenty percent (20%).  For the purposes of valuation, the invoiced value of the products subject to retention of title and the nominal value of the claims shall be authoritative.
  7. The provisions in Section IX of these Terms and Conditions (Transfer of Risk) shall remain unaffected by the provisions of this Section XIV (Retention of Title).

XV. Patents and Copyrights

The Distributor agrees that it will not, directly or indirectly, apply for, take out, maintain, or otherwise acquire any patents, utility models, registered designs or copyrights (or any similar intellectual property rights capable of registration) in any country, on the basis of confidential information obtained by the Distributor from Sigma-Aldrich (or any of Sigma-Aldrich’s affiliates).

XVI. Technical Assistance

At the Distributor’s request, Sigma-Aldrich may, at its discretion, furnish technical assistance and information with respect to possible applications and technical specifications of its product free of cost unless fees have been agreed in the individual case.  By providing advice and information Sigma-Aldrich does not assume any warranty, express or implied, for technical specifications, use, selection or suitability of the products.  In particular, Sigma-Aldrich does not assume any warranty that certain chemical reactions which have been presented are feasible.  Section XIII (Liability of Sigma-Aldrich) of these Terms and Conditions shall apply accordingly.

XVII. Compliance with Laws

  1. The Distributor shall conduct its operations in compliance with all applicable laws and regulations of all jurisdictions having contact with the transactions contemplated by the Agreement, including, without limitation, any European Union (“EU”) legislation, and shall indemnify and hold Sigma-Aldrich and its legal successors and assigns harmless from and against any liability for failure to do so.  The Distributor will, without limitation, obtain and maintain, at the Distributor’s expense, all licenses, permits, registrations, authorizations, certificates, consents, waivers, receipts, qualifications, clearances and approvals of any type or character whatsoever (whether public or private) as needed to authorize, without limitation:  (i) the parties’ execution of the Agreement and performance hereunder; and (ii) the Distributor’s import, export, storage, distribution, use, marketing, transportation and sale of the products.
  2. Without limiting anything in the preceding paragraph:  (i) the Distributor acknowledges that Sigma-Aldrich (and its affiliates) is bound by a corporate policy of ethical and legal conduct (the “Policy”), as well as United States (“U.S.”) law, including the Foreign Corrupt Practices Act of 1977, as amended (the “Act”); and (ii) the Distributor agrees not to engage in any activity in violation of the provisions of the Policy, the Act or any other applicable laws or regulations prohibiting unfair, fraudulent or corrupt business practices, including legal requirements designed to combat terrorism and terrorist activities.

XVIII. Export

  1. The Distributor acknowledges that the products may be subject to export and economic sanctions restrictions of the EU, Switzerland, U.S. and other countries ("Export Regulations").  The Distributor represents and warrants that it will not use, transfer, release, export or re-export or take any action that could result in the diversion of any Sigma-Aldrich products or items containing or incorporating any Sigma-Aldrich products in violation of applicable Export Regulations.  The Distributor shall screen parties to export transactions against applicable sanctions and denial lists and inform Sigma-Aldrich if any proposed transaction involves parties on those lists or sanctioned destinations.  The Distributor shall obtain any approvals that may be required.
  2. The Distributor is prohibited from selling or providing products of Sigma-Aldrich to any third party if such products are excluded from delivery according to Swiss, EU or U.S. export regulations.
  3. If U.S. export controls require a license for the export of one or more of the products (or any part thereof or relating thereto) or any other products or services sold under these Terms and Conditions (i) Sigma-Aldrich’s obligations under these Terms and Conditions are subject to the condition precedent of the grant of such export license and (ii) the Distributor shall not transfer or dispose of any such products or related software, know-how, technical data, documentation, products, services or other materials to any party or in any manner which would constitute a violation of U.S. export controls.
  4. Breach of this section will entitle Sigma-Aldrich immediately to terminate the individual purchase order and the Agreement.

XIX. No Waiver

No delay on the part of Sigma-Aldrich in the exercise of any right or remedy shall operate as a waiver thereof, and no single or partial exercise by Sigma-Aldrich of any right or remedy shall preclude such party from any further exercise of the right or remedy, or the exercise of any other right or remedy.

XX. Force Majeure

  1. If Sigma-Aldrich is prevented by force majeure from performing its contractual obligations, in particular from delivering the products, Sigma-Aldrich will be released from its obligation to perform for the duration of the impediment and for a reasonable start-up period without being liable towards the Distributor for damages.  The same applies if the performance of its obligations by Sigma-Aldrich is unreasonably impeded or becomes temporarily impossible because of unforeseeable circumstances for which Sigma-Aldrich is not responsible.  Such causes include, but are not limited to, acts of God, actions of the elements, including floods and other natural disasters, fires, explosions, lockouts, strikes, wars, riots, civil commotion, epidemic, embargoes, failure to obtain export licenses or import authorizations, transportation delays and acts of government, energy shortfalls, suppliers’ delivery problems or substantial interruptions of operations except as may be specifically provided for elsewhere in the Agreement.  Sigma-Aldrich shall promptly notify the Distributor of such interference, including, without limitation, a detailed description thereof, the date of commencement of such interference and the estimated duration thereof.
  2. Sigma-Aldrich shall be entitled to terminate the purchase order if such interference persists for more than ninety (90) days and Sigma-Aldrich has no longer an interest in performance of the purchase order due to such interference.  After expiration of such period, at the Distributor’s request, Sigma-Aldrich shall declare whether it intends to exercise its rescission right or deliver the products within a reasonable period of time.
  3. In no event shall Sigma-Aldrich be liable to the Distributor for any claims, damages, costs or expenses arising out of or related to Sigma-Aldrich’s inability to timely ship products or fulfill purchase orders due to a force majeure event.

XXI. Confidentiality

The Distributor agrees for itself and its employees, agents and representatives that the Distributor shall not disclose to any third party and shall maintain as confidential, any and all confidential information provided to the Distributor by Sigma-Aldrich.  Such confidential information shall include, without limitation, information concerning Sigma-Aldrich or its affiliates’ business, finances, proposed products, product development, marketing and/or sales plans, special project pricing, purchase orders, the Agreement, business or operational know-how and any other information deemed confidential by Sigma-Aldrich.

XXII. Miscellaneous

  1. The captions in the Agreement are for convenience only and do not affect the interpretation of the Agreement.
  2. The parties’ obligations under Sections XII (Claims for Defect), XIII (Liability of Sigma-Aldrich), XXI (Confidentiality) and XXII (Miscellaneous) of these Terms and Conditions shall survive the expiration or termination of the Agreement.
  3. Place of performance for all obligations of the Distributor and Sigma-Aldrich is the place of business of Sigma-Aldrich.
  4. The legal relationship between the Distributor and Sigma-Aldrich shall be governed by and construed in accordance with the laws of Switzerland, without giving effect to the conflict of law provisions thereof, as well as, excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
  5. The exclusive legal venue for all disputes arising from the business relationship between Sigma-Aldrich and the Distributor is the place of business of Sigma-Aldrich.  Sigma-Aldrich shall also be entitled to bring legal actions at the place of business of the Distributor or any other applicable and permissible legal venue.
  6. The Distributor shall pay Sigma-Aldrich all damages, costs and expenses (including reasonable attorney’s fees) incurred by Sigma-Aldrich in obtaining injunctive or other relief for the enforcement of any provision of the Agreement.
  7. If any provision of the Agreement should be or become wholly or partially void , ineffective or unenforceable, the validity, effectiveness and enforceability of the other provisions of the Agreement shall not be affected thereby.  Any such void, ineffective or unenforceable provision shall be deemed replaced by such valid, effective and enforceable provision as comes closest to the economic intent and purpose of the void, ineffective or unenforceable provision.