Terms & Conditions
TERMS AND CONDITIONS OF SALE
Thank you for your interest in purchasing our products. We value your business and our goal is to make your purchasing experience as smooth as possible. If you have any questions about our quotation or ordering process, please refer to the “Resources” section of our website. Unless otherwise expressly agreed in writing, your purchase of products from us is subject to the following terms and conditions:
1. Agreement Terms
1.1 General Terms. These terms and conditions (“Terms”), our quotation (if any) and Supplementary Terms, if any, comprise the agreement (“Agreement”) between you and us, Thermo Fisher Scientific India Pvt. Ltd.. Unless your order is subject to a valid, written, executed agreement between you and us, in which case such agreement applies, you agree to accept and be bound by the Agreement by ordering products on www.thermofisher.in/chemicals/en/home.html (“Site”) or if you receive ordering or sales documents that reference these Terms. This Agreement is the complete and exclusive contract between you and us with respect to your purchase of the products.
Supplementary Terms. Some of our products are subject to additional software licenses, limited use label licenses or other written contract terms that you will not find here (“Supplementary Terms”). You will find any Supplementary Terms that apply to your purchase in our quotation to you, on our Site, or in literature that accompanies the product. You can also obtain copies from Customer Services.
1.2 Terms Conflict. If any conditions within the Agreement documents conflict with each other, we will give them the following priority: (a) the quotation; (b) any applicable Supplementary Terms; and (c) finally these Terms. We expressly reject any different terms or provisions contained in any document you provide, and if the terms and conditions in this Agreement differ from the terms of your offer, this Agreement will serve as the governing terms for our contract.
1.3 When Agreement takes Effect. The Agreement between you and us is created when you receive email confirmation that we have accepted your order.
2.1 Determining Price. We may change our prices at any time without notice. Prices we quote you are valid for 30 days, unless we state otherwise in writing. If no price has been specified or quoted to you, the price will be the product price on our Site in effect at the time we accept your order. Prices to be paid by the Customer may take into account fluctuations in the cost of materials, components, labor and services, including services provided to us (such as energy, electricity and water) as well as services provided by us (such as metal handling and financing).
2.2 Taxes and Fees. Our product prices do not include any taxes (including GST), duties, levies or other government fees that may apply to your order. If they apply, it will be your responsibility to pay them. If we pay them, we will add them to your invoice. In case you are eligible for any exemption or lower rate of tax, you are responsible to provide the requisite details, documents, declarations or undertake any prescribed compliances for the purpose of tax exemptions / lower tax rates while issuing purchase order or before supply is made (whichever is earlier). Further we would upload details as per our invoice in our monthly tax return and corresponding input tax credit claimed by you could be independently reconciled and you would be responsible to communicate to us in case of any discrepancy. No changes to invoice can be requested by you once the details of the same have been uploaded by us. Further, in case you are required to deduct tax at source on certain payments made to us in accordance with the tax laws, you shall deposit such amount with government within the prescribed time limit and also comply with the prescribed procedures so as to enable us to avail the credit of such tax deducted by you.
2.3 Delivery Fees; Freight Policy. You are also responsible for standard delivery and handling charges, if applicable, and our product prices do not include such charges unless expressly stated. If we pay such charges, we will also add these to your invoice.
3. Cancellation and Changes
Once you have placed your order, you cannot cancel or change it without our written consent.
4.1 Payment Terms. We will invoice you for the product price and all other charges due when we ship you the products. Unless we have agreed otherwise in writing, you will pay us within 30 days from your receipt of invoice. Each order is a separate transaction, and you may not off-set payments, including from one order against another. We reserve the right to require you to make full or partial payment in advance, or provide other security to our satisfaction, if we believe in good faith that your financial condition does not justify the payments terms otherwise specified. You will make all payments in the currency specified in our invoice to you.
4.2 Late Payment. If you are late in making payment then, without affecting our other rights you will make payment to us, upon our demand, of a late-payment charge. The late payment charge will be calculated as interest on the sums due from the payment due date until you make payment in full, at the rate of 2% per month, or, if less, the maximum amount allowed by law and will also include our reasonable costs of collection (including collection agency fees and attorneys’ fees). We also reserve the right to cancel or stop delivery of products in transit and withhold shipments in whole or in part if you do not pay us when due, or if you otherwise do not perform your obligations in this Agreement.
5.1 Delivery. We will ship products to the destination you specify in your order, FCA Incoterms 2010 our shipping point. By agreeing to these Terms, you (i) give your consent for us to arrange for carriage for all products supplied hereunder on your behalf; and (ii) waive your right to arrange carriage or to give us any specific instructions regarding carriage. We may, in our discretion, make partial shipments and invoice each shipment separately. Our shipping dates are approximate only, and we will not be liable for any loss or damages resulting from any delay in delivery. You may not refuse delivery or otherwise be relieved of any obligations as the result of such delay. If our delivery of a product to you is delayed due to any cause within your control, we will place the delayed products in storage at your risk and expense. We shall be entitled, without prejudice, to any of our other remedies to withhold delivery of any Goods if either (i) any amount is outstanding and overdue from you in respect of any invoice issued by us; or (ii) upon the invoicing of products, your credit limit (if any) with us would thereby be exceeded.
5.2 Quantity. The quantity, purity, volume and other quantitative attributes of all shipments of products will be determined in accordance with our usual weighing, measuring and other practices, and our determination will govern. These values may vary from batch to batch. Reasonable variation from values quoted shall not be deemed to be non-conformance with our specifications.
5.3 Product packaging. At the time of actual delivery, the product packaging may be different from that shown/depicted/described on the Site due to sourcing changes and/or availability/non-availability.
6. Risk of Loss and Title
Title to and risk of loss of the products will pass to you when we load them onto the commercial carrier at our facility.
7.1 Returns. Our Customer Service team must pre-authorize all product returns. Our Customer Service team will approve return of any product that is damaged or defective on receipt, provided you contact our Customer Service team within five days after receiving the product and provided such damage or defect has not been caused by any failure by you or the carrier to handle or store products using reasonable care or as otherwise indicated on the label. If you do not contact us within this five day period, we will deem the product to be accepted, but you will not lose any warranty rights. No return of chemicals will be accepted where you have imposed your own quality parameters unless these have been stipulated on the order and agreed to in writing by us. Return or disposal of Goods will be compliant with all applicable laws and regulations.
8.1 Seller warrants that the Products will operate or perform substantially in conformance with Seller's published specifications and be free from defects in material and workmanship, when subjected to storage as per the issued guidelines (safety data sheet) and normal, proper and intended usage by properly trained personnel, for the period of time set forth in the product documentation, published specifications or package inserts. If a period of time is not specified in Seller's product documentation, published specifications or package inserts, the warranty period shall be ninety (90) days (the "Warranty Period"). Warranty is implied to untampered/sealed pack. Seller agrees during the Warranty Period to replace defective Products.
8.2 Exclusions. In addition to our exclusion for third party products as set out in Section 8.5 of these Terms, our warranties do not apply to (a) normal wear and tear; (b) accident, disaster or event of force majeure; (c) your misuse, fault or negligence; (d) causes external to the products such as, but not limited to, power failure or electrical power surges; (e) instruments sold to you as ‘used’ products; (f) installation, removal, use, maintenance, storage, or handling in an improper, inadequate, or unapproved manner by you or any third party (including the carrier), such as, but not limited to, failure to follow our instructions or operating guidelines, or protocols, operation outside of stated environmental or use specifications, or operation or contact with unapproved software, materials, chemicals or other products; or (g) products manufactured in accordance with specifications you gave us. ADDITIONALLY, ANY INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN US WITHOUT OUR PRIOR WRITTEN APPROVAL, OR ANY USE OF REPLACEMENT PARTS WE HAVE NOT SUPPLIED, WILL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO THE AFFECTED PRODUCTS.
If we determine that products for which you requested warranty services are not covered by the warranty, or if we provide repair services or replacement parts that are not covered by this warranty, you will pay or reimburse us for all costs of investigating and responding to such request at our then prevailing time and materials rates.
- OUR WARRANTIES EXTEND ONLY TO YOU, THE ORIGINAL PURCHASER AND YOU CANNOT TRANSFER THEM. OUR OBLIGATION TO REPAIR OR REPLACE A PRODUCT IS YOUR SOLE REMEDY.
- EXCEPT AS OTHERWISE STATED, WE DISCLAIM ALL OTHER WARRANTIES AND CONDITIONS, INCLUDING ANY WARRANTY AS TO THE SUITABILITY FOR FOOD, DRUG, AGRICULTURAL, COSMETIC OR HOUSEHOLD USE. WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES
- OF MERCHANTABILITY;
- OF FITNESS FOR ANY PARTICULAR PURPOSE; AND/ OR
- THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
8.4 Remedies. During the applicable warranty period only, for products not meeting our warranty, we agree, in our sole discretion, to repair or replace the non-conforming product and/or provide additional parts as reasonably necessary to comply with our warranty obligations, but you must first promptly notify us in writing when you discover any defect or non- conformance, and include in the notice clear details of your warranty claim. After our review, assuming we authorize the product return, we will provide you with service data and/or a Return Material Authorization (“RMA”), which may include biohazard decontamination procedures and other product-specific handling instructions that you must follow. For valid product warranty claims timely made in accordance with this Agreement, you must return the non-conforming products to us, unless we agree otherwise, and we will prepay the shipping costs. For instruments only, we may choose to provide you with new or refurbished replacement parts. All replaced parts will become our property. We will ship your repaired or replacement products according to our Delivery terms in Section 5 of these Terms.
8.5 Third Party Products. We do not support or make any warranties about products manufactured or supplied by third parties that you purchase through any of our sales channels. When you buy a third party product, we will let you know that this purchase is governed by the third-party’s own contract terms. You must look directly to the relevant third-party manufacturer for product support, warranties, and to make warranty claims. We agree, however, to assign to you any warranty rights we may receive from the original manufacturer or third party supplier, to the extent the original manufacturer or third party supplier allows.
9.1 Our Indemnity.
- Our Infringement Indemnity. We will defend and indemnify you against infringement damages finally awarded in any legal action brought by a third party against you alleging infringement of any intellectual property rights owned by third parties arising directly and solely from a product, as manufactured and provided by us to you, but always excluding use and/or combination of such product with other products or components. This infringement indemnity does not apply to (a) claims that arose based on your failure to comply with the Agreement; (b) claims that arose based on your failure to acquire any applicable additional intellectual property rights related to your use of the products (“Additional Rights”); (c) products that we made, assembled or labeled in reliance upon your instructions, specifications, or other directions; (d) your use or resale of products; (e) modifications made by you or any third party; or (f) products originating from third parties.
THIS INDEMNITY IS OUR ONLY LIABILITY TO YOU, AND, SUBJECT TO SECTION 11.4 OF THESE TERMS, YOUR ONLY REMEDY, FOR ANY INFRINGEMENT OR CLAIMED INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS BY OR IN CONNECTION WITH ANY PRODUCT.
- Conditions to Our Indemnity. As a condition to our indemnification obligations you must (a) notify us in writing, as soon as you become aware of any claim; (b) not admit any liability or take any other action in connection with the claim that could affect the defense; (c) allow us to solely control the defense or settlement of the claim; (d) give us your reasonable information, co-operation and assistance; and (e) take all reasonable steps to mitigate losses incurred, including allowing us to exercise any and all of options set out in Section 11.4 of these Terms.
9.2 Your Indemnity of Us. If a third party makes a claim against us for infringement of its intellectual property rights based on (a) our manufacture or sale of a product or custom product we make under your instructions, specifications, or other directions, or using materials that you provide to us (b) your failure to comply with the Agreement, (c) your failure to acquire any applicable Additional Rights, or (d) your modification, use or resale of a product, then you will indemnify and hold us harmless from and against any and all claims, losses, damages, liabilities and expenses (including reasonable attorneys’ fees and other costs of defending and/or settling any action) that we may have to pay as a result of the claim. In addition, you agree to defend and indemnify us and our affiliates, and our and their directors, officers, employees, contractors, suppliers, representatives, agents, successors and assigns, from and against any and all fines, penalties, suits, actions, claims, liabilities, judgments, costs, and expenses (including reasonable attorneys’ fees) resulting or arising from: (a) your breach of any of the terms of the Agreement; (b) your use, sale, handling, storage or disposal of the products or any product or waste derived therefrom; (c) your discharge or release of the products or any product or waste derived therefrom into water, onto land or into the air; or (d) your exposing any person (including your workers) to the products or any product or waste derived therefrom, including failure to warn of such exposure.
10. Intellectual Property
10.1 Use Limitations. As between you and us, we exclusively own all intellectual property rights relating to our products and services. Unless we expressly state otherwise, in Supplementary Terms, no right to transfer, distribute or resell our products or any of their components is conveyed expressly, by implication, or by estoppel. Unless expressly permitted by us in writing, you will not modify, change, remove, cover or otherwise obscure any of our brands, trade or service marks on the products. Nothing in the Agreement limits our ability to enforce our intellectual property rights.
10.2 Limitation for Purpose and Use. It is solely your responsibility to ensure, by tests or otherwise, that products are fit and suitable for the purpose for which you require them in the conditions in which they will be used. We accept no liability for misuse of the products or failure by you to carry out your statutory obligations. You assume responsibility to assure that the products purchased are approved for use and marketing under any law or regulation, if applicable.
10.3 Intellectual Property Infringement. We want to avoid claims of intellectual property infringement. If we believe a product we have sold to you may be subject to a claim for intellectual property infringement, you must allow us (at our option) to either (a) secure for you the right to continue using the product; (b) substitute the product with another suitable product with similar functionality; or (c) tell you to return the product to us and we will refund to you the price you paid. In the case of instruments, we will take off a reasonable amount for the instrument’s use, damage or because it is now out of date or out of use.
11. Limitations and Exclusions of Liability
(A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ALL COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT YOU MIGHT INCUR UNDER THE AGREEMENT, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR PRODUCTS OR SERVICES, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
(B) IN ADDITION, OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT, OR ANY PRODUCT UNIT OR SERVICE, IS LIMITED TO THE AMOUNT YOU PAID TO US FOR THOSE SPECIFIC UNITS OF DELIVERED PRODUCT PURCHASED THAT GAVE RISE TO THE LIABILITY.
(C) THE PROVISIONS ABOVE IN THIS SECTION 11 DO NOT LIMIT OUR LIABILITY THAT CANNOT BE LIMITED BY LAW, INCLUDING BUT NOT LIMITED TO LIABILITY FOR FRAUD AND DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE.
12. Export Restrictions
12.1 Items. You acknowledge that each product and any related software and technology, including technical information we supply you, including those contained in product documents (collectively “Items”), is subject to U.S., EU and local government export controls.
12.2 Export Controls. The export controls may include, among others, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries.
12.3 Compliance Requirements. You must comply with the EAR, and all other applicable laws, regulations, treaties, and agreements relating to the export, re-export, and import of any Item. You must not, directly or indirectly, without first obtaining the required license to do so from the appropriate U.S. government agency; (a) export, re-export, distribute or supply any Item to (a) any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government; (b) any person or entity who is involved in improper development or use of nuclear weapons or of chemicals/biological weapons, or missiles, or in terrorist activities. You will, if we request, provide information on the end user and end use of any Item you export or plan to export.
12.4 Audit Cooperation. You will cooperate fully with us in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and will indemnify and hold us harmless from, or in connection with, your or your consultants’, agents’ or employees’ violation of this Section 15.
13. Safety and Health Communications
You acknowledge that you have read, understand and will comply with all documents we provide or make available in connection with the offer, sale or provision of the products, including information set forth on product labels, product use warnings, Safety Data Sheets, Material Safety Data Sheets, and other technical bulletins and publications containing safety, health, handling and environmental hazard information concerning the products and their properties, as applicable. You agree you are fully responsible for ensuring that you, your personnel and third parties safely and properly use, store and handle the products, including, but not limited to, by adequately: (i) informing your employees, contractors, agents and other third parties who may become exposed to the products after delivery to you of any hazards associated with the products, and of the safe and proper storage, handling and use procedures relating to the products; (ii) incorporating available safety, health, handling and environmental hazard information, such as that supplied by us, into your product safety communications and providing such hazard communication documents to all of your employees, contractors, agents and other third parties. If you further process, mix or incorporate the products into another product, you shall disseminate appropriate safety, health, handling, and environmental hazard information to all persons who may be exposed to that other product.
14. Sale of Chemicals
If the products include any chemicals (i.e., if you purchase any chemicals from us and this Agreement applies to the sale), you may only use the chemicals for laboratory research and analysis purposes. You shall not use such products for any other purpose, including but not limited to: in vitro diagnostic purposes, food, drug, cosmetic, agricultural or household use. Please refer to our Site for the specification of the most recent lot of a specific product, although note this may not be the lot you will obtain. Certificates of analysis for your specific lot may be available on request. Certificates of analysis are only supplied with semi-bulk and bulk orders and not with catalogue-listed quantities. Should you require a certificate of analysis for a catalogue-listed quantity, we reserve the right to charge you for providing such a certificate of analysis. No return of chemicals will be accepted where you have imposed your own quality parameters unless these have been stipulated on the order and agreed to in writing by us.
15. Compliance with Laws: If you are reseller of products/services being sold herein then you will comply in all respects with all applicable laws relating to corruption, commercial bribery, and money laundering. You represent and warrant that no part of any fees paid or payable to you or any profits obtained by you in connection with your activities on behalf of Thermo Fisher will be (i) directly or indirectly paid, offered, transferred, or given to any third party, official, representative, or employee of any government, government agency, or instrumentality for the purpose of obtaining or retaining business for or with, or directing business to, any person or company (such as Thermo Fisher), or (ii) otherwise used for any purpose which would violate the US Foreign Corrupt Practices Act (FCPA) or any other applicable anti-corruption laws.
16. Additional payment modes: In compliance with provisions of section 269SU read with section 295 of the Income Tax Act, 1961, we provide following additional payment modes in addition to normal NEFT and RTGS: (a) Debit Card powered by RuPay; (b) Unified Payments Interface (UPI) (BHIM-UPI) - thermofisherindia@hsbc; and (c) Unified Payments Interface Quick Response Code (UPI QR Code) (BHIM-UPI QR Code). In case of any queries or support required, please contact us at TFSINDIA.AR@THERMOFISHER.COM.
17. Please forward all GST related documents to the following address: Accounts Receivable Department, Thermo Fisher Scientific India Private Limited, 403-404, B-Wing, Delphi, Hiranandani Business Park, Powai, Mumbai – 400076, India.
18.1 No Assignment. You may not delegate any duties nor assign any rights or claims hereunder without our prior written consent, and any such attempted delegation or assignment will be void.
18.2 Governing Law. The Agreement and performance under it will be governed by the laws of the country where the selling entity (as specified on your order confirmation from us) is located. In the event of any legal proceeding between you and us relating to the Agreement, neither party may claim the right to a trial by jury. Any action arising under the Agreement must be brought within one year from the date that the cause of action arose. The U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
18.3 Jurisdiction: Courts in Mumbai alone will have jurisdiction to settle any dispute arising out of this Agreement.
18.4 Regulatory Restrictions. In addition to the restrictions set out in Section 11 of these Terms: (a) you must use our products in accordance with our instructions; (b) you are solely responsible for making sure that the way you use our products complies with applicable laws, regulations and governmental policies; (c) you must obtain all necessary approvals and permissions you may need; and (d) it is solely your responsibility to make sure the products are suitable for your particular use.
18.5 Uncontrollable Circumstances. We will not be responsible or liable for failing to perform our obligations under the Agreement to the extent caused by circumstances beyond our reasonable control. In certain situations, we may use our reasonable judgment and apportion products then available for delivery fairly among our customers.
18.6 No Waiver; Invalidity. Our failure to exercise any rights under the Agreement is not a waiver of our rights to damages for your breach of contract and is not a waiver of any subsequent breach. If any provision or part of the Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement. No person other than you or us will have any rights under the Agreement.
18.7 Headings. Headings are for convenience only and shall not be used in the interpretation of these Terms.
18.8 Confidentiality. You agree to keep confidential any non-public technical information, commercial information (including prices, without limitation) or instructions (including any gene sequences, oligo types or sequences) received from us as a result of discussions, negotiations and other communications between us in relation to our products or services.
18.9 Notices. Any notice or communication required or permitted under these Terms must be in writing and will be deemed received when personally delivered, or 3 business days after being sent by certified mail, postage prepaid, to a party’s specified address.
18.10 Requirement to Reduce to Writing. No waiver, consent, modification, amendment or changes to the terms of the Agreement will be binding unless in writing and signed by both of us. Our failure to object to terms contained in any subsequent communication from you will not be a waiver or modification of our Agreement.
18.11 Severability. Any provision of the Agreement which is prohibited or which is held to be void or unenforceable shall be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
Updated July 27, 2020