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GENERAL TERMS AND CONDITIONS OF MIKROGEN GMBH

§ 1 Basic Terms, Scope

1. The following General Terms and Conditions of Mikrogen shall apply exclusively. Terms and conditions of customer being in conflict with these General Terms and Conditions of Mikrogen shall be not accepted unless Mikrogen agrees to them explicitly in writing. The General Terms and Conditions of Mikrogen shall apply even in the event Mikrogen carries out the delivery or performance to customer without any reservation, despite Mikrogen's knowledge of the terms and conditions of customer in conflict with the General Terms and Conditions of Mikrogen. The General Terms and Conditions of Mikrogen shall also apply for any future business relation with customer.
2. All agreements between Mikrogen and customer on deliveries and services shall be subject to written  contract

§ 2 Offer

Mikrogen shall be bound by its delivery offer made to customer for a period of six months, unless stipulated otherwise. If customer makes an offer to Mikrogen, Mikrogen shall be entitled to accept such offer within a reasonable period of time either trough an order confirmation or directly through delivery of the ordered contractual product.

§ 3 Prices, Terms of Payment, Delay in Payment, Set-off,  Right of Retention

1. The prices of Mikrogen are "ex works". Costs for packaging and delivery are invoiced additionally, unless stipulated otherwise.
2. The legal value-added tax is not included in the prices of Mikrogen. This tax shall be stated separately in the invoice in the amount legally valid.
3. Unless stated otherwise in the respective contract, payment for deliveries and performances shall be made within 30 days upon receipt of invoice. If customer does not pay the invoice within 30 days upon receipt of invoice, he shall be in delay automatically without any further demand for payment. In such case, Mikrogen shall be entitled to claim default interest in the amount of 8 % p.a. above the respective basic interest rate. If Mikrogen is able to prove a higher damage due to the delay, Mikrogen shall be entitled to claim this higher damage.
4. Payments by cheque shall be accepted only on account of performance and shall be considered as effected only after their irrevocable credit on the account of Mikrogen.
5. Customer shall be only entitled for set-off or retention, if his counter-claim is granted by final and non-appealable judgement, is uncontested or is approved by Mikrogen.

§ 4 Reservation of Title

1. Title and ownership of the contractual product vests in Mikrogen until all sums owed by customer to Mikrogen, arising from the business connection, have been paid in full by customer.
2. Customer shall not be entitled to resell or manufacture the respective contractual product, unless approved by Customer in writing.
3. In the case of distress or other interference by third parties, customer shall notify Mikrogen immediately in writing in order to enable Mikrogen to file a claim according to § 771 of the German Code of Civil Procedure (ZPO). As far as the third party is not able to reimburse Mikrogen the judicial and extra-judicial costs of a claim in accordance with § 771 ZPO, customer shall be liable for the costs not reimbursed to Mikrogen.

§ 5 Time of Delivery and Performance, Delay

1. Compliance with the delivery deadlines shall be deemed given, if the contractual product has left the warehouse or the readiness for dispatch of the product has been notified to customer before the delivery deadlines have expired. Mikrogen shall be entitled in any case of force majeure - even during delay - to postpone its delivery or performance by and for the duration of the impediment. Events of force majeure include all events which prevent or unreasonably impede to Mikrogen the delivery or performance and for which Mikrogen is not responsible, e.g. legitimate strike or legitimate lock-out, war, import and export prohibitions, shortage of energy and raw material, measures of a public authority, delayed deliveries from third parties to Mikrogen for which Mikrogen is not responsible. If such impediment lasts longer than two months, customer shall be entitled after granting an adequate grace period to terminate the respective contract, if customer can prove that the partially outstanding fulfilment of the respective contract is no longer of interest for him because of the delay. If the above mentioned circumstances last longer than four months, Mikrogen shall also be entitled to terminate the respective contract. At the request of customer Mikrogen shall declare whether it will withdraw from the respective contract or whether it will deliver within a reasonable period of time notified by Mikrogen.
2. Any claims for damages against Mikrogen as a result of delay shall be regulated according to § 8.

§ 6 Passing of Risk, Terms of Delivery

1. Mikrogen shall be entitled to partial deliveries, provided that they are not unreasonable.
2. Deliveries of Mikrogen are made “ex works“. The risk shall pass to customer as soon as the contractual product is handed over to the person carrying out the transport from the warehouse on; this shall also apply in case that the transport is carried out by Mikrogen.

1. Warranty claims of customer for defects are subject to customer's  examinination of the contractual products immediately after delivery and that he notifies Mikrogen immediately in writing on recognizable defects or variations in quantity.
2. In case that a contractual product delivered by Mikrogen shows defects, Mikrogen may choose within a period of two weeks after notice of the defect whether it removes the defect by way of rectification, by substitute delivery or price reduction. In case that rectification or substitute delivery fails, customer shall be entitled to rescind the respective contract. Further warranty rights are excluded. Customer shall provide best efforts to support Mikrogen in the ascertainment and removal of defects.
3. Redeliveries of customer without previous consent of Mikrogen will be returned to customer at customer's cost and risk.
4. Any claims for damages against Mikrogen as a result of defects shall be regulated according to § 8.
5. Mikrogen does not assume any warranty for damages as a result of modifications on the delivered product which were made without the prior written approval of Mikrogen.
6. The warranty period is limited to one year, beginning at the date of the legal commencement of the limitation period. Communicated minimum shelf life of the contractual products shall remain unaffected.
7. Any kind of warranty shall be excluded if customer does not use, treat and keep the contractual product in accordance with the instructions of Mikrogen and if the defect results therefrom.
8. Guarantees in a legal meaning are not given by Mikrogen.

§ 8  Liability and Damages

1. Mikrogen shall be liable for damages only in case of intent and gross negligence. In case of slight negligence Mikrogen shall be liable only for and limited to the contractually typical and foreseeable damage as far as there will be an infringement of such obligation of which the observance is of essential importance for the purpose of the contract (essential obligation).
2. In case of impossibility ab initio, Mikrogen shall only be liable if it has known the performance's obstacle or if Mikorogen's lack of such knowledge is based on gross negligence.
3. The above mentioned exclusions or respective limitations of liability shall not apply to claims according to the German Product Liability Act and to injuries of life, physical integrity or health and damage caused by delay. In this respect Mikrogen shall be liable for gross and slight negligence and intent. In the event of delayed delivery, Mikrogen's liability shall be limited to the equivalent of 0,5% of the purchase price per week, subject to a cap on a total of the equivalent of 5% of the purchase price. Liability in respect of essential contractual obligations shall be limited to the usual foreseeable damage. As far as the liability of Mikrogen is excluded or limited, this shall also apply to the personal liability of Mikrogen's employees, workers, staff members, representatives and vicarious agents.
4. Except for liability in tort, claims for damages of which the liability is limited according to § 8 (1) and (2) shall become statute-barred after one year.

§ 9 Statute of Limitation

Notwithstanding § 195 of the German Civil Code (“BGB“), Mikrogen's claims shall become statute-barred after five (5) years. The period of limitation begins to run according to § 199 BGB.

§ 10 Place of Jurisdiction, Miscellaneous

1. The laws of the Federal Republic of Germany shall exclusively apply, excluding, however, the UN Sales Convention.
2. Exclusive place of jurisdiction for all disputes arising out of the business relationship between Mikrogen and customer shall be Munich.
3. Munich shall be place of performance.

(Version 04.2006)

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