Terms and Conditions
- Applicability
- Delivery and Performance
- Use of Products
- Inspection and Rejection of Nonconforming Products
- Price, Payment and Credit Facilities
- Software and Use Documents License Terms
- Limited Warranties
- Return of Products and disposal of Product Waste
- Limitation of Liability and Indemnification
- Compliance with Laws
- Trade Compliance Obligations
- Termination
- Confidential Information
- Force Majeure
- Miscellaneous
1.1 These terms and conditions (these "Terms") and any Sales Documents and supplemental terms (the “Agreement”) are between Merck Life Science (Pty) Ltd. or an affiliate ("Seller") and the purchaser (“Purchaser”) with respect to the purchase and sale of products (“Products”) and services ("Services") indicated on Sales Documents. “Sales Documents” means any document provided by Seller confirming, acknowledging or accepting an order and shipping documents (“Order Confirmation”). If the parties have signed a contract applicable to the sale of certain Products and/or Services, the terms of such contract shall prevail to the extent they are inconsistent with these Terms. These Terms prevail over Purchaser’s terms.
2.1 Delivery dates provided by Seller are non-binding and Seller shall not be liable for any delays, loss or damage in transit.
2.2 Unless otherwise agreed in writing, Products are shipped using Seller's standard packaging and shipping methods, for which fees may apply and title to Products (excluding Software) shall pass to Purchaser when they arrive.
2.3 Seller may make partial shipments of Products and invoice immediately. Purchaser shall pay for the units shipped, whether in whole or in part. Seller reserves the right to allocate supply of Products as necessary, without liability for failure to perform.
2.4 Seller shall determine the location of Services. If Services are provided at Seller’s site, Purchaser shall be responsible for necessary costs. If Services are provided at Purchaser’s site or another site under Purchaser’s control, Purchaser shall provide access to premises and facilities and provide any requested materials, information, and/or approvals which must be complete and accurate.
3.1 Purchaser shall comply with all instructions made available by Seller (“Use Documents”), and shall comply with all applicable laws, obtain necessary intellectual property permissions and properly test and use Products.
3.2 The Products are to be used for the purposes set out in the Use Documents only, unless otherwise agreed by Seller in writing.
4. Inspection and Rejection of Nonconforming Products
4.1 Purchaser shall inspect Products no later than five (5) days after receipt ("Inspection Period"). Purchaser will have accepted the received Products unless it notifies Seller in writing of any Nonconforming Products during the Inspection Period, furnishing evidence, if required. "Nonconforming Products" means delivered Products, or quantity, which are different than identified in the Order Confirmation.
4.2 If there are Nonconforming Products notified, Seller shall either (a) replace such Products, or (b) credit the price for such Nonconforming Products or, in the event of partial delivery, adjust the invoice to reflect the actual quantity delivered. Seller reserves the right to inspect Products. These remedies are the exclusive remedies for Nonconforming Products.
5. Price, Payment and Credit Facilities
5.1 The Products and Services shall be purchased at the prices offered by Seller. All prices are exclusive of taxes and other charges imposed by any authority. Purchaser shall be responsible for all such taxes and charges. Purchaser shall not be responsible for any taxes imposed on, Seller's income, revenues, gross receipts, property, or assets.
5.2 Purchaser shall pay all invoiced amounts within 30 days from date of monthly statement into the specified bank account, without any deduction or set-off. Seller shall levy interest at the maximum rate permitted by law on all overdue amounts.
5.3 Should any amount not be paid by Purchaser on the due date, then the whole amount in respect of all purchases by Purchaser shall become due and payable. Seller shall be entitled to delay or suspend all further deliveries of goods until all outstanding amounts have been settled in full by Purchaser.
5.4 Seller reserves the right to call for guarantees from Purchaser and if guarantees are not supplied with 14 days of Seller’s written request, Seller shall be entitled to suspend further deliveries until it receives the requested guarantee and/or all amounts owing by Purchaser shall immediately become due and payable.
5.5 Purchaser acknowledges that the granting of credit facilities to it, and the terms, is at the sole discretion of Seller.
6. Software and Use Documents License Terms
6.1 If any software or Use Documents are provided or licensed by Seller to Purchaser (“Software”), the terms provided with such Software shall apply. If there are no terms provided therewith, these Terms shall apply.
6.2 Seller grants Purchaser the right and license to use the Software and intellectual property rights and Seller shall retain ownership thereof. Purchaser shall (a) only use the Software with Products or Services for the intended purpose, (b) not cause or permit any reverse engineering or adaptation of the Software, or (c) not violate any applicable import or export control regulations.
6.3 Any replacements, fixes or upgrades of the Software shall be provided at prices and payment terms as specified by Seller, unless a separate license agreement is applicable.
7.1 Seller warrants to Purchaser that
7.1.1 Products will conform to Seller's specifications for (a) one (1) year from the date of shipment of Products or (b) the remaining shelf life or the period prior to expiration date of Product, whichever is shorter.
7.1.2 Services shall comply with generally recognized industry standards and Seller shall provide resources to meet its obligations under the Agreement. Any claim that Seller has breached the obligation must be made within the 90 day period after the performance of the applicable Services.
7.1.3 the Software will conform to published specifications for one (1) year from date of delivery.
7.2 Except for the above warranties, Seller makes no other warranties, express or implied, with respect to Products and Services.
7.3 The limited warranties only apply if : (a) Purchaser gives written notice of the defect(s) to Seller immediately upon discovery; and (b) Seller is given reasonable opportunity to examine the defects; and (c) the defect(s) are verified by Seller.
7.4 Section 7.1.1 does not apply if a defect arises: (a) as a result of non-compliance with Use Documents; (b) any unauthorized installation or other servicing of Products occurs; (c) as a result of normal wear and tear or lack of proper maintenance; or (d) as a result of the Products being used beyond the date in the Use Documents.
7.5 Section 7.1.2 does not apply if an equipment failure or defect results directly or indirectly from the following: (a) non-compliance with Use Documents; (b) any misuse or wrongful act by Purchaser or agents; (c) accidents or shipping related damage; (d) electrical failure; (e) vandalism, explosion, weather or environmental conditions; or (f) any unauthorized installation or other servicing. If this limitation applies but Seller, at its sole discretion, elects to re-perform the applicable Services, Purchaser may be charged for fees and expenses incurred.
7.6 Section 7.1.3 does not apply to any defects arising out of or relating to (a) Purchaser’s breach of Section 6; (b) Purchaser’s failure to promptly install required updates; or (c) the operation of Purchaser or a third-party system or network.
8. Return of Products and disposal of Product Waste
8.1 For the purposes of this Agreement:
- “Waste” shall bear the meaning ascribed to such term in the National Environmental Management: Waste Act 59 of 2008; and
- “Product Waste” means any Waste in any manner relating to or associated with the Product.
8.2 Purchaser shall not be entitled to return any Products (whether or not expired and whether or not in relation to any Product Waste) without Seller’s prior written consent. Seller reserves the right to inspect Products prior to making any determination as to whether or not to provide its consent to any such requested return.
8.3 All returns consented to in writing by Seller, must be made in compliance with Seller’s instructions and may be subject to a restocking charge. Title to returned Products shall transfer to Seller upon acceptance at the facility designated by Seller. Any returned Products must be in original packaging with the original label and unaltered in form and content.
8.4 Seller shall not be responsible for, nor obliged to accept the return of any Product and/or Product Waste.
8.5 Purchaser acknowledges that, as at the time of acquisition, it is acquiring a Product and not Waste.
8.6 Once a Product is sold to Purchaser, Purchaser shall be responsible for taking all reasonable measures to ensure that such Product and/or any Product Waste is treated and disposed of in compliance with all applicable national or other legislation or regulations in the Republic of South Africa, including but not limited to the National Environmental Management: Waste Act 59 of 2008, and Purchaser indemnifies Seller against any failure by Purchaser to comply with such obligations.
9. Limitation of Liability and Indemnification
9.1 Purchaser shall indemnify and hold Seller, its affiliates, and agents harmless from and against all claims, losses, costs and expenses (a) arising from the transport, storage, sale or use of Products, or Software, including infringement of any third-party intellectual property rights resulting from Purchaser’s proper use thereof (b) resulting from Purchaser’s breach of the Agreement, and/or (c) arising from the negligence, recklessness or misconduct of Purchaser, its affiliates, or their agents, or (d) the non-performance or delay in Seller’s performance as a result of an act or omission of Purchaser or its agents.
9.2 Seller shall not be liable for incidental, indirect or special damages of any kind. The total liability of Seller hereunder shall not exceed the purchase price of Products or Services, or the license fee of Software involved. All warranty claims must be brought within one (1) year of delivery of Products or Software or performance of Services.
10.1 Purchaser shall comply with all applicable laws (including but not limited to any applicable environmental laws or regulations). Purchaser shall maintain all required licenses and permits. Seller’s processing activities shall be governed by its privacy policy posted at www.sigmaaldrich.com/privacy.
11. Trade Compliance Obligations
11.1 Purchaser (and its affiliates) shall comply with all applicable trade related restrictions within the scope and jurisdiction of the United Nations, the European Union, the United States (“Unions”). Purchaser shall set up and maintain a monitoring mechanism to detect any misconduct in relation to trade related restrictions and shall inform Seller without delay. Any violation of the above restrictions shall warrant a penalty of 15% of the total value of this Agreement or price of goods exported, whichever is higher.
11.2 Purchaser shall (i) not re-export to or for use in Russia, goods or technology listed in Annexes XI, XX, XXXV and common high priority items listed in Annex XL to Council Regulation (EU) No 833/2014 of 31 July 2014 and (ii) not re-export to Belarus or for use in Belarus, goods or technology as listed in Annexes XVI, XVII and XXVIII and common high priority items listed in Annex XXX to Council Regulation (EC) No 765/2006 of 18 May 2006. If Purchaser contravenes any of the regulations referred to in this Section, Merck will notify the competent authorities of the respective breach(es).
11.3 Purchaser shall cooperate and shall submit all documentation necessary for Seller obtain any licenses. Seller is not responsible for any denial or revocation of licenses.
In addition to any other remedies, Seller may immediately terminate the Agreement upon written notice if: (a) Purchaser fails to pay any amount when due; (b) Purchaser has not performed or complied herewith, in whole or in part; (c) Purchaser becomes insolvent, is placed under business rescue, files a petition for bankruptcy or commenced, or commences proceedings relating to bankruptcy, or assignment for the benefit of creditors; or (d) if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
All confidential or proprietary information disclosed by Seller to Purchaser, however disclosed, whether or not marked as "confidential" is confidential and may not be disclosed or used by Purchaser for its own use, unless authorized in advance in writing by Seller. Upon request, Purchaser shall promptly return or destroy all documents and other materials received from Seller. This section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.
Neither party will be in default of any obligation under this Agreement (other than obligations to pay money) if there is a Force Majeure Event. A “Force Majeure Event” shall include any occurrence beyond the reasonable control of a party, including: act of nature; war or terrorism; epidemic or pandemic; labor disturbance or strike. The party declaring a Force Majeure Event will notify the other party in writing, explaining the event and will also notify the other party of the cessation of any such event. A party declaring a Force Majeure Event will use reasonable efforts to remedy or remove such event and the effects. Upon cessation of the Force Majeure Event, performance of any suspended obligation will promptly recommence.
15.1 No waiver of any provisions of this Agreement is effective unless set out in writing.
15.2 Purchaser shall not assign any of its rights or delegate any of its obligations under this Agreement without Seller’s prior written consent.
15.3 The relationship between the parties is that of independent contractors. Neither party shall have authority to contract for or bind the other party.
15.4 All matters arising out of or relating to the Agreement are governed by and construed in accordance with the laws of the Republic of South Africa.
15.5 Unless otherwise agreed, any notices required shall be made in writing and sent by courier service with tracking or registered or certified mail to the other party at its registered office or principal place of business.
15.6 If any term or provision of the Agreement is invalid or unenforceable in any jurisdiction, such invalidity shall not affect any other term of the Agreement.
15.7 Provisions, which by their nature should apply beyond their terms, will remain in force after termination or expiration of the Agreement.
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