Product Purchase Terms and Conditions

  1. SHIPMENT AND DELIVERY. Delivery of the products listed on the applicable quotation (“Products,” which may include any instrument(s) identified on the quotation (“Instruments”), plates, reagents or other items) shall be made F.O.B. MSD’s plant (for shipments within the United States) and EXW MSD’s plant (for shipments outside the United States) and MSD shall prepay transportation and insurance and, unless otherwise indicated on the quotation, bill such amounts to Customer. The Products shall be suitably packed for air shipment, unless otherwise requested by Customer and agreed to in writing by MSD. Subject to Section 4 hereof, title for the Products, except for software embedded in the Products and any other accompanying software (individually and collectively the “Software”), shall pass to Customer (subject to MSD’s rights as an unpaid seller) upon delivery of the applicable item to a carrier for shipment to Customer and Customer thereafter is responsible for and bears the entire risk of loss, theft, destruction or damage thereto. Customer acknowledges and agrees that the Software shall be owned by MSD and that Customer’s right to use the Software is set forth in and limited by the license accompanying the Software. All dates for delivery of Products to Customer’s premises set forth on the quotation are estimates only and MSD shall not be liable for damages for delay in delivery. For purposes of this contract, “Shipment Date” shall mean the date on which Products are delivered to a carrier for shipment to Customer’s premises.

     

  2. ACCEPTANCE. 

    1. At a mutually agreed upon time, an MSD certified technical specialist shall install the Instruments, if any are purchased by Customer hereunder, and demonstrate to Customer that such Instruments are in working condition. If such Instruments are in good working order, upon completion of installation, Customer shall be deemed to have accepted such Instruments. Customer shall accept any tender of any other Products by MSD which substantially conforms to MSD's descriptions for the Products (each a “Product Description”) and Customer shall be deemed to have accepted such other Products as of the Shipment Date. Customer may revoke acceptance of Products other than Instruments only if: (1) the delivered Products do not substantially conform to the Product Description, and (2) Customer gives notice in writing to MSD of such non-conformance: (a) in the case of a non-conformance discoverable through inspection, within ten (10) days after the date such Products arrive at Customer’s premises, or (b) in the case of a non-conformance not discoverable through inspection, within twenty (20) days after the date such Products arrive at Customer’s premises. In the case of non-conforming Products other than Instruments, Customer shall immediately notify MSD whether or not Customer shall continue to accept similarly non-conforming Products and acceptance of any non-conforming Products shall constitute a waiver by Customer of the particular Product Description to which said Products do not conform. In addition, when any Products (other than Instruments) have been altered from their original state by Customer, Customer's acceptance shall be irrevocable. Portions of shipments of Products for which acceptance has been properly revoked pursuant to this Section 2.1 shall be returned freight prepaid to MSD within the appropriate revocation period set forth above. Prior to returning Products to MSD, Customer shall contact MSD in order to receive a return authorization code. Customer acknowledges and agrees that MSD shall not accept any return of Products without such return authorization code.
    2. MSD shall, at its option and expense, either repair or replace Products for which acceptance has been properly revoked, provided that the Products have been timely returned to MSD in accordance with Section 2.1. Notwithstanding any other provision of this contract, no return of Products shall relieve Customer of its obligations to make payment in full as required in Section 3 below. MSD shall have the right to make substitutions and modifications of the Products to be delivered hereunder provided that such substitutions or modifications shall not materially and adversely affect overall performance.
    3. Customer agrees that this contract is binding upon and enforceable against Customer, and shall govern any and all future purchases of Products by or on behalf of Customer unless otherwise agreed to in a writing signed by an authorized representative of MSD. If Customer issues a purchase order or similar document which contains additional Products, MSD in its sole discretion may elect to sell such additional Products to Customer, provided, however, that such additional Products shall be governed solely by the terms and conditions of this contract and not by any terms and conditions of such purchase order or similar document.

     

  3. PRICE AND PAYMENT.

    1. MSD reserves the right to change without notice the published list prices, if any, referenced on the quotation. The Products covered by this contract shall be invoiced at MSD’s prices and charges in effect at the time of each shipment under this contract. MSD reserves the right to make a delivery of Products ordered by Customer in installments. If Products are delivered in installments, each shipment shall be treated as a separate transaction and Customer shall pay for each installment as provided above. Customer shall be liable for payment of the price of all delivered Products. Customer grants a purchase money security interest to MSD in the Products until the full purchase price of the Products is received by MSD. Customer will execute all documents and take all other actions as are necessary to enable MSD to perfect such security interest in the Products.
    2. Payment in full is due and payable thirty (30) days after the date set forth on the invoice provided by MSD to Customer (“Invoice Date”). Quoted prices for Products are exclusive of all foreign, federal, state, municipal and other governmental sales, use and excise taxes, transaction and value added taxes, fees and assessments and other like taxes or duties, which are due and payable to MSD on demand. Prices for the Products are also exclusive of all transportation, insurance and customs charges, charges for special packaging or shipping instructions and handling required to comply with manufacturer's specifications, and any charges due as a result of complying with applicable U.S. Department of Transportation or other regulations or to meet Customer requirements, which are due and payable to MSD on demand. All invoices, including those for Products shipped outside of the United States, shall be payable in United States currency. MSD reserves the right to assess a service charge not exceeding the lesser of 1.5% per month (or portion thereof) or the maximum amount permitted by applicable law on invoiced amounts not paid within thirty (30) days of Invoice Date, with interest to accrue monthly until full payment is received.
    3. If Customer defaults on its obligations set forth herein, MSD may, at any time and in its sole discretion and without affecting any other rights or remedies, (a) limit or cancel the credit of Customer as to time and amount, and as a consequence, require payment in cash before delivery of any unfilled portion of this contract; (b) demand assurance of Customer’s due performance; (c) suspend production, shipment, and/or deliveries; and (d) decline to make further shipments. If, within the period stated in MSD’s demand, but in no event longer than thirty (30) days, Customer fails to agree and comply with such different terms of payment, and/or fails to give adequate assurance of due performance, MSD may by written notice to Customer, treat such failure or refusal as a repudiation by Customer of the portion of this contract not then fully performed, whereupon MSD may cancel all further deliveries and any amounts unpaid hereunder shall immediately become due and payable. If MSD retains a collection agency and/or attorney to collect overdue amounts, all collection costs, including attorney’s fees, shall be payable by Customer. Customer hereby represents to MSD that Customer is now solvent and agrees that each acceptance of delivery of the Products sold hereunder shall constitute reaffirmation of this representation at such time.
    4. Under no circumstances shall Customer have the right to offset payments due Customer from MSD under this or any other agreement against payments due MSD under this contract.

     

  4. LIMITATIONS ON USE AND INTELLECTUAL PROPERTY.
    1. Customer acknowledges that the Products, components of the Products, and methods of making and using the Products incorporate, embody, or are protected by "Intellectual Property Rights," which as used herein means any and all common law and statutory proprietary rights, including patent rights (including method patents), trademark rights, trade secret rights, rights of copyright, and any other intellectual property rights and equivalent and similar forms of protection, whether registered or unregistered, as well as the applications for registration and the right to apply for registration of any of these rights, in all cases existing from time to time under the intellectual property laws of the United States, any state or foreign jurisdiction, or international treaty regime that are (a) incorporated or embodied in or that protect the Products and (b) owned by MSD or its affiliates. MSD and its affiliates are and shall remain the sole and exclusive owners of all Intellectual Property Rights at all times. The Software is subject to the terms, conditions and limitations of the license included with the Software.
    2. The sale of the Products to Customer is subject to and expressly conditioned on the limitations on use of the Products and the other limitations with respect to Products set forth in this contract. Customer covenants and agrees that it shall not use any Product (1) with any plate, electrochemiluminescent label, read buffer or plate reader that is not purchased by Customer from MSD or (2) for purposes other than research purposes, including without limitation, for human or veterinary diagnostic or treatment purposes (“Prohibited Uses”). Customer agrees that it will not copy the Products in whole or in part, modify or create derivative versions of the Products, or disassemble, decompile, or reverse engineer the Products (“Prohibited Actions”). In conjunction with the limitation set forth in this Section 4, MSD hereby notifies Customer, and Customer hereby acknowledges that: (a) the Products have not been approved by the U.S. Food and Drug Administration or any other similar regulatory authority for human use; (b) the Products are for research use only; and (c) Prohibited Uses and Prohibited Actions could violate other foreign or U.S. federal, state and/or local laws and/or regulations. MSD DISCLAIMS ANY AND ALL LIABILITY FOR ANY AND ALL USES BY CUSTOMER IN VIOLATION OF THIS SECTION 4. MSD hereby notifies Customer, and Customer hereby acknowledges and agrees, that Customer is expressly prohibited from renting, leasing, loaning, selling, having sold, manufacturing, having manufactured, distributing, disposing of, assigning, pledging, encumbering, sublicensing or otherwise transferring (whether with or without consideration or whether voluntarily or involuntarily) the Products (“Prohibited Transfers”). Any Prohibited Transfer of the Products shall be null and void and of no force or effect. In addition, Customer hereby acknowledges that it may not use MSD’s trademarks, service marks, trade names, designs or logos without MSD’s prior written consent.
    3. Subject to the terms and conditions of this contract, including but not limited to the restrictions on Prohibited Uses, Prohibited Actions, and Prohibited Transfers, MSD hereby grants to Customer, under the Intellectual Property Rights, a limited, non-exclusive, non-transferable, non-sublicensable, non-assignable license to use the Products only for research purposes and not for any other purpose, including without limitation for Prohibited Uses or Prohibited Actions. CUSTOMER SHALL HAVE NO RIGHT, TITLE OR INTEREST TO ANY INTELLECTUAL PROPERTY RIGHTS OF MSD INCORPORATED INTO OR EMBODIED IN OR THAT PROTECT THE PRODUCTS, EXCEPT AS EXPRESSLY SET FORTH ABOVE. MSD retains the right to terminate this license immediately if Customer breaches any of the terms and conditions set forth in this Section 4.
    4. MSD retains for itself any and all proprietary rights arising out of the work done by MSD in connection with placing, maintaining and servicing the Products (and related Software) and from any and all products developed by MSD as a result thereof. Customer acknowledges that MSD has devoted and continues to devote significant resources to the development of the Products (and related Software). Accordingly, to the extent that Customer creates or develops any modification, enhancement, improvement or derivative to any of the Products (or related Software), Customer hereby assigns, or shall cause to be assigned, any and all right, title and interest, including all patent rights and copyrights, in and to such modification, enhancement, improvement or derivative to MSD. Customer hereby agrees to execute any additional documentation necessary to effectuate the foregoing, and shall cooperate with MSD’s efforts to protect any intellectual property rights therein.
    5. Customer shall treat as confidential all information and materials supplied by MSD marked as “confidential” or “proprietary,” including all information necessary for the proper testing, operation and use of the Products, pricing and other sales transaction information (including without limitation the terms of this contract), and any other information or materials which by their nature Customer should reasonably know are confidential (collectively, the “Confidential Information”). Customer agrees to abide by the terms of any markings and shall not remove any markings from the Products. Customer covenants and agrees that it shall not divulge, disclose, or in any way distrib¬ute or make use of such Confidential Information (except as explicitly provided for herein). Customer shall not provide MSD with any confidential or proprietary information of a third party.
    6. Customer hereby acknowledges and agrees that a remedy at law for damages for Customer’s breach of this Section 4 will be inadequate, and will be impracticable and extremely difficult to prove, and further that such a breach would cause MSD irreparable harm, and that MSD shall be entitled to specific performance of such obligations of Customer under this contract, declarative relief and equitable remedies, including, without limitation, temporary and permanent injunctive relief, including but not limited to enjoining Customer from Prohibited Uses, Prohibited Actions, or Prohibited Transfers without the necessity of proving actual damages. Customer agrees that MSD shall be entitled to any such equitable relief, including, without limitation, temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of posting bond or any other undertaking in connection therewith, as well as such further relief as may be granted by a court of competent jurisdiction. The rights, powers and remedies hereunder shall be in addition to, and not in limitation of, all rights, powers and remedies provided at law or in equity. All of such rights, powers and remedies shall be cumulative, and may be exercised successively or cumulatively.

     

  5. COMPLIANCE WITH LAWS. Customer shall comply with any and all applicable foreign, federal, state or local laws, regulations and ordinances, including but not limited to safety regulations.

     

  6. INDEMNITY. Customer shall indemnify, defend and hold MSD harmless from, any claim or action, including without limitation claim of infringement, arising out of: (a) any violation of Section 4 above; (b) the use of any of the Products or Software or in combination with any products, assays, systems, device, software, information, services or data not supplied by MSD hereunder; (c) MSD’s compliance with Customer designs or requests; (d) alterations to any of the Products made by Customer or a third party; (e) Customer’s sales or marketing of products, substances, or components or ingredients thereof, using Products or on which tests or studies were conducted using any of the Products; (f) Customer’s manufacture, sale, or use of any materials provided to MSD to be included in any Product; or (g) MSD’s use or reliance on any materials provided by Customer to be included in any Product. Customer shall further indemnify, defend and hold MSD harmless from any claims (including, without limitation, third party claims) for loss, damage or injury (including death) allegedly caused by Customer’s use of the Products. No costs or expenses shall be incurred for the account of MSD without MSD’s prior written consent in its sole discretion.

     

  7. LIMITED WARRANTY.
    1. MSD warrants that the Instruments will be free from defects in workmanship and materials for a period of one (1) year from the earlier of (i) the installation date or (ii) ninety (90) days following the Shipment Date. MSD warrants, for a period of one (1) year from their acceptance in accordance with Section 2.1 above, that the plates, assays, and reagents (including replacements thereof) (collectively, the “Consumables”) are provided in accordance with the product description which accompany such Consumables as of their Shipment Date. In addition, if a "use before" or "warranty expiration" date is affixed to the label of a Consumable, MSD warrants that such item will be free from defects in workmanship and materials until such expiration date (the period from acceptance of the Consumables until the end of such one year period or expiration date, as the case may be, is hereinafter referred to as the “Warranty Period” for such Consumables). MSD may be liable only for those defects in workmanship and materials that cause failure in the Products to perform in accordance with the documentation describing the Products. MSD shall have no liability or obligation to Customer for any breach of these warranties which arises or results, in whole or in part, from or relates to (a) misuse, neglect, usage other than as set forth in the applicable instructions, a Prohibited Use, a Prohibited Action, or a Prohibited Transfer, (b) alterations, modifications, or maintenance by anyone other than MSD or an MSD authorized representative, (c) any defect or deficiency in any materials provided by Customer to be included in any Product, (d) Customer's failure to store or handle the Products in accordance with MSD's instructions, (e) failure to follow any of MSD's instructions or recommendations, failure to use the Instruments in accordance with their Product Description, or failure to implement upgrades provided by MSD, (f) using or combining the Instrument with any product, service or data not provided, or authorized, by MSD or (g) natural disasters (e.g., floods, earthquakes), accidents, fires, wars, riots, warlike conditions, plagues, or other epidemics, hazards, external causes, or other conditions beyond the control of MSD.
    2. Products subject to warranty claims shall, in accordance with MSD’s instructions, either be returned to MSD, freight at MSD’s expense, within the limited warranty period set forth above through a carrier approved in advance by MSD or remain at the Customer’s premises for repair or replacement by MSD. Customer shall not return Products without a return authorization code issued by MSD. If, upon return to MSD by Customer, Products are determined by MSD not to be in breach of the applicable warranty, then such Products shall be returned to Customer at Customer’s expense, and Customer shall reimburse MSD for freight charges paid by MSD with respect to such improperly returned Products. Customer's sole remedy and MSD's exclusive liability for a breach of this warranty shall be, at MSD's option, the repair or replacement of the non-conforming Products.
    3. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THERE IS NO WARRANTY, WHETHER STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, MADE BY MSD IN RESPECT TO THE PRODUCTS, AND MSD HEREBY DISCLAIMS, AND CUSTOMER WAIVES, ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER STATUTORY, EXPRESS, IMPLIED OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THE DELIVERY, USE OR PERFORMANCE OF PRODUCTS (AND RELATED SOFTWARE AND INTELLECTUAL PROPERTY) OR WITH RESPECT TO ANY SERVICES PROVIDED HEREUNDER, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, QUIET ENJOYMENT, SYSTEM INTEGRATION AND DATA ACCURACY.

     

  8. LIMITATION OF LIABILITY. MSD’S LIABILITY FOR DIRECT DAMAGES SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER FOR THE PRODUCTS THAT ARE THE SUBJECT MATTER OF SUCH CLAIM. IN NO EVENT SHALL MSD BE LIABLE FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR PARTS OR FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES, HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE, STRICT LIABILITY, FUNDAMENTAL BREACH, OR UNDER ANY OTHER LEGAL THEORY, OR OTHERWISE, EVEN IF MSD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Customer agrees that MSD shall not be liable for any claim or demand against Customer by any other party, including without limitation, any claim based on the use or misuse (including but not limited to any Prohibited Use or Prohibited Action) of any of the Products or Software by any third party or resulting from a Prohibited Transfer. In addition, Customer agrees that MSD shall not be liable for any claim or demand arising out of or related to Customer’s storage or handling of the Products. The parties agree that the above disclaimer of warranty and limitation of liability form an essential basis of the bargain between the parties and MSD has set its prices in part based on such disclaimer and limitation. The disclaimer of warranty and limitation of liability shall be enforceable even if all other remedies fail of their essential purpose.

     

  9. MISCELLANEOUS. If Customer issues a purchase order or any similar document, even if acknowledged by MSD, the terms and conditions of that purchase order or similar document, irrespective of the presence or absence of any similar term or condition in this contract, shall have no force or effect and the terms and conditions of this contract shall continue unaltered and unaffected. All notices required to be given under this contract must be in writing and sent certified mail, return receipt requested, or by nationally recognized overnight courier. Notices shall be deemed given on the date actually received. This contract shall not be amended or modified, nor shall any waiver (by action or inaction) of any provision be effective unless in writing signed by both parties. This contract may not be assigned or transferred (including by operation of law) by Customer, in whole or in part, without the prior written consent of MSD. This contract shall be governed by and construed in accordance with the laws of the State of Maryland, excluding its conflict of laws provisions. Customer hereby irrevocably consents to venue and jurisdiction in the State of Maryland. The parties hereby expressly disclaim the applicability of the U.N. Convention on Contracts for the International Sale of Goods. If either party is impeded in fulfilling its obligations hereunder by circumstances beyond its reasonable control, including but not limited to, acts of God, fire, war, and delays in deliveries from suppliers, the impediment shall be considered a force majeure event and such party shall be exempted from liability for delays caused by such event. Each of the terms and conditions of this contract shall be deemed separate and the invalidity or unenforceability of any provision shall not affect any other provision. The failure of either party to enforce any right resulting from a breach of any provision of this contract by the other party shall not be deemed a waiver of any cumulative or concurrent right relating to any such breach or subsequent breach of such provision or of any other right hereunder. The parties agree that there are no third party beneficiaries to this contract. The terms and conditions set forth in Sections 3.4, 4, and 6 through 9 shall survive the expiration or termination of this contract. The quotation, these terms and conditions and any license included with the Software, constitute the entire agreement with respect to the Products and Software and shall exclusively govern the parties’ rights and obligations thereto, and Customer has not relied on any representations or statements made by MSD prior to entering into this contract. For avoidance of doubt, sales and customer and technical support representatives of MSD have no authority to make any representations not included herein, and any such representations should not be relied on by Customer. MSD hereby rejects any different or additional terms previously or hereafter proposed by Customer, none of which shall be effective unless embodied in a writing signed by an authorized representative of MSD. Section headings contained in this contract are inserted for convenience of reference only, shall not be deemed to be a part of this contract for any purpose, and shall not in any way define or affect the meaning, construction or scope of any provisions hereof. All hardware not included in the Instruments, all tools, or test hardware, and all media, documentation or Software used or provided by MSD in the performance of this contract shall remain the personal property of MSD.
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