EMD Chemicals Terms & Conditions of Sale
1. TERMS -- The terms and conditions on the reverse side, and as set forth below, shall constitute the entire
agreement (“Agreement”) between EMD Chemicals Inc. (“EMD”) and Buyer and shall govern all sales of
products (“Products”). This Agreement supersedes any other written/oral communications between the
parties and information in any EMD literature, website or catalog, and overrides and excludes any other terms
and conditions stipulated, incorporated or referred to by Buyer, and any prior course of dealing between the
parties. EMD’s acceptance of any order, including the signing by EMD of any of Buyer’s documentation
issued in conjunction with any order, is expressly subject to Buyer's assent to each and all of the terms and
conditions set forth herein. No alteration or modification of, or addition to, this Agreement shall have any
force, effect or validity whatsoever and no other terms and conditions whatsoever shall be controlling unless
in writing and signed by EMD, and stating that it is intended to be effective as such alteration, modification or
addition.
2. PRICES -- Unit prices for the Products apply only to the specific quantity and delivery schedule stated. EMD
reserves the right to change prices without notice. All prices are subject to correction of errors; EMD reserves
the right to adjust prices on orders during production due to changes in cost of materials, transportation or
wages. Freight charges will be added to the invoice as a separate item. Any tax, customs, surcharge or duty,
howsoever denominated, imposed upon the sale, importation, delivery or use of Products shall be the
responsibility of Buyer, and if paid by EMD, shall be invoiced to Buyer.
3. TERMS OF PAYMENT -- Payment shall be due thirty (30) days from the date of invoice. If Buyer becomes
delinquent in payments or if EMD has reasonable doubt as to Buyer’s financial responsibility then, in addition
to any other remedy to which it may be entitled, EMD may: (i) terminate this Agreement and/or any other
agreement EMD has with Buyer, (ii) stop deliveries or make further deliveries on a COD basis only, and/or (iii)
declare due and payable immediately all unpaid amounts for Products previously delivered to the Buyer.
Interest on all sums due and unpaid after due date shall run at the maximum rate permitted by applicable law
until payment is received.
4. SHIPMENTS AND DELIVERY -- Delivery of all orders are, as stated on the reverse side, according to
INCOTERMS 2000. Except as otherwise agreed, method of transportation will be per EMD’s policy. Delivery
of the goods to the carrier at EMD’s shipping point shall constitute delivery and Buyer shall bear all risk of
loss or damage to goods in transit. All delivery dates are estimates and the time of delivery shall not be of the
essence. EMD shall be entitled to deliver the Products in installments. Buyer shall promptly inspect Product
upon delivery and for any shipment received in damaged condition Buyer shall notify EMD and comply with
EMD’s damaged goods procedure.
5. CANCELLATION AND RETURN -- Buyer may not cancel any order or return any Product without EMD’s
consent. Cancellation and return charges may be charged by EMD. Special order Products, Products subject
to FDA or other governmental regulation and/or cGMP processing requirements are not eligible for
cancellation or return. Buyer must contact EMD to obtain a return material authorization number.
6. WARRANTY -- Products are warranted to meet the specifications set forth on their label/packaging and/or
certificate of analysis (“Specifications”) at the time of shipment or for the expressly stated duration. This
warranty does not extend to any Product which has been subjected to misuse, neglect, or to use in violation
of instructions furnished by EMD. For Products EXPRESSLY SOLD FOR USE IN FOOD, DRUG OR
COSMETIC APPLICATIONS, EMD guarantees that no such Product is adulterated or misbranded within the
meaning of the Federal Food, Drug and Cosmetic Act (“Act”) or within the meaning of any other applicable
law in which the definitions of adulteration or misbranding are substantially the same as those contained in
the Act, as such laws are constituted and effective at the time of shipment, or is an article which may not,
under Sections 404 or 505 of the Act, be introduced into interstate commerce. EXCEPT FOR THE
WARRANTIES ABOVE, EMD MAKES NO OTHER WARRANTY OF ANY KIND WITH REGARD TO ITS
PRODUCTS, WHETHER EXPRESS, IMPLIED, BY OPERATION OF LAW, BY COURSE OF DEALING,
USAGE OF TRADE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Unless otherwise specified,
Products are sold for laboratory and manufacturing use and are not intended for use as foods, drugs,
cosmetics or household chemicals. Certain Products sold under this Agreement may be FOR RESEARCH
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EMD Chemicals Inc. Phone 856-423-6300
480 South Democrat Road Fax 856-224-0325
Gibbstown, NJ 08027 www.emdchemicals.com
USE ONLY and will be marked as such on their packaging and/or shipping documents. Buyer acknowledges
and agrees that such identified Products are NOT TO BE USED IN MANUFACTURING, FOR HUMAN OR
DRUG USE, OR OTHER COMMERCIAL PURPOSES.
7. INSPECTION OF PRODUCTS AND REMEDYFOR NONCONCOFMRING PRODUCTS -- Buyer shall inspect
Products on receipt and within thirty (30) days thereof notify EMD of any non-conformances to the
Specifications. If Buyer fails to give such notice, Products shall be deemed to meet the Specifications and
Products shall be deemed to have been accepted. EMD may, on Buyer’s premises, inspect any Products
claimed not to conform. In the alternative, any claimed non-conformance may be confirmed through analysis
by a third-party laboratory reasonably acceptable to both parties and within a reasonable time frame. If, as a
result of said analysis, non-conformance is confirmed, the cost for said analysis shall be paid by EMD;
otherwise Buyer shall pay for said analysis. For any Product that does not conform to the Specifications, EMD
shall have the following options, at its sole discretion: (i) provide replacement Products; (ii) make whatever
repairs/modifications to the Products that EMD deems necessary to enable the Products to conform to the
Specifications; or (iii) credit Buyer for the Product price paid. THE CORRECTION OF NON CONFORMITIES
BY REPLACEMENT, REPAIR, MODIFICATION, OR CREDITING BUYER’S ACCOUNT IN THE MANNER
SET FORTH ABOVE SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES OF BUYER AND
SHALL CONSTITUTE FULFILLMENT OF THE OBLIGATIONS OF EMD WITH RESPECT TO THE
WARRANTY GIVEN HEREIN.
8. LIABILITY FOR EMD -- Buyer assumes all risk and liability for loss, damage or injury to persons or to
property of Buyer or others arising out of the presence or use of the Products. Except as expressly provided
otherwise herein, EMD shall not indemnify nor be liable to Buyer, Buyer’s customers, successors, or to any
person or entity for any claims, damages or losses arising out of the sale or use of Products, where liability is
premised upon any theory including, but not limited to, warranty, negligence or strict liability. EMD SHALL
NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, EXEMPLARY OR
SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS
INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS,
LOSS OF REVENUE OR PROFITS, OR ANY LIABILITY OF BUYER TO A THIRD PARTY. THE TOTAL
LIABILITY OF EMD UNDER THIS AGREEMENT SHALL NOT EXCEED THE PURCHASE PRICE OF THE
PRODUCTS INVOLVED. All claims must be brought within one (1) year of delivery, regardless of their
nature.
9. BUYER'S RESPONSIBILITY -- The Products are sold on the condition that they be handled, used and
disposed of in compliance with applicable laws and in conformance with recognized industry and professional
standards, including those related to the protection of human health and the environment. BUYER
ACKNOWLEDGES THAT THERE ARE HAZARDS ASSOCIATED WITH THE USE OF THE PRODUCTS,
THAT IT UNDERSTANDS SUCH HAZARDS, AND THAT IT IS THE RESPONSIBILITY OF BUYER TO
WARN AND PROTECT ALL THOSE EXPOSED TO SUCH HAZARDS. Buyer shall ensure that: (i) the
Specifications are safe for the intended use; (ii) the Products are handled in a safe manner; and (iii) any
waste originating from the Products is disposed of according to relevant regulations. In the event of resale of
Product by Buyer, and where EMD has affixed warnings on the exterior of potentially dangerous Products,
Buyer is prohibited from changing, deleting, or obscuring such warnings in any way unless Buyer shall
suitably reproduce the same warnings on the packaging. The foregoing shall not preclude Buyer from adding
any additional warnings or disclaimers as may be appropriate and/or required by law as a condition to Buyer’s
resale or use of the Products. Buyer warrants to EMD that the manufacture, sale or use of Products supplied
to Buyer’s specifications will not infringe any intellectual property right of any third party. Buyer shall indemnify
and hold EMD harmless from and against any and all claims, damages, losses, costs or expenses (including
attorney’s fees), arising in connection with Buyer’s sale or use of the Products, including Buyer’s breach of
the foregoing covenants and representations, or arising from the negligence, recklessness or misconduct of
Buyer.
10. TECHNICAL ASSISTANCE -- EMD makes no warranties of any kind for any technical advice provided by
EMD, or for any results occurring as a result of the application of such advice.
11. FORCE MAJEURE -- Neither party hereto shall be in default in the performance of its obligations hereunder
(other than its obligation to make any payment of money hereunder), or be liable in damages or otherwise for
any failure or delay in performance which is due to causes beyond its reasonable control. Either party
affected by such an event shall promptly give notice to the other, stating the nature of the event, its
anticipated duration and action being taken to avoid or minimize its effect. Neither party hereto shall be
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EMD Chemicals Inc. Phone 856-423-6300
480 South Democrat Road Fax 856-224-0325
Gibbstown, NJ 08027 www.emdchemicals.com
required to grant any demand or request to bring to an end any strike or other concerted act of workmen. If, at
Buyer’s request or for any reason for which Buyer is responsible, the production or shipment of Products is
delayed, EMD may immediately invoice Buyer for the Products produced, and costs and expenses incurred
up to the time of the delay.
12. EXPORT -- This Agreement shall be construed and implemented in compliance with the U.S. Export
Administration Act of 1979, which restricts exports of certain Products and technology into certain countries,
and all other applicable U.S. export controls. Buyer agrees, and shall cause each of its customers to agree,
that it will not knowingly, either directly or indirectly, export or re-export the Products into those countries,
end-users or end-uses described in CFR Title 15 unless Buyer and/or such customers first obtain permission
from the U.S. Bureau of Export Administration or other division as applicable. Buyer agrees and shall cause
each of its customers to agree, that it will commit no acts which directly or indirectly violate any U.S. export
control law, regulation, treaty or other international agreement to which the U.S. adheres or complies or any
applicable export, import or other laws of any other jurisdiction and agrees to indemnify and to hold EMD
harmless from any and all liabilities or costs incurred by EMD or its affiliates for any reason arising from or
connected with any such violation, incurred intentionally or unintentionally.
13. MISCELLANEOUS -- In the event that any of the provisions in this Agreement shall be held to be invalid,
illegal or unenforceable, such invalidity, illegality or unenforceability shall not affect any other provisions
hereof. Waiver by EMD of any breach of this Agreement shall not be construed as a waiver of any other
breach, and the failure of EMD to exercise any right arising from any default of Buyer shall not be deemed to
be a waiver of such right, which may be exercised at any subsequent time. This Agreement is not assignable
or transferable by Buyer without the written consent of EMD. This Agreement shall be construed and
interpreted solely in accordance with the laws of the State of New York, without regard to choice of laws
principles, including international sales for which the Convention for the International Sale of Goods shall not
apply.
14. PUBLICITY -- Any marketing, promotion or other publicity material, whether written or in electronic form, that
refers to EMD, its affiliates, their products, or to this Agreement must be approved by EMD prior to its use or
release.
15. PROPRIETARY RIGHTS -- EMD, or its affiliates, are the owners of certain proprietary brand names,
trademarks, trade names, logos and other intellectual property. Except as otherwise expressly permitted by
EMD, no use of EMD’s or its affiliates’ brand names, trademarks, trade names, logos or other intellectual
property is permitted, nor the adoption, use or registration of any words, phrases or symbols so nearly
resembling any of EMD's or its affiliates’ brand names, trademarks, trade names, logos or other intellectual
property as to be likely to lead to confusion or uncertainty, or to impair or infringe the same in any manner, or
to imply any endorsement by EMD of another entity’s products or services.
Rev 03/01/07
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EMD Chemicals Inc. Phone 856-423-6300
480 South Democrat Road Fax 856-224-0325
Gibbstown, NJ 08027 www.emdchemicals.com