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General Terms and Conditions of Sale and Delivery

GENEART AG, Josef-Engert-Straße 11, D-93053 Regensburg (hereinafter referred to as "GENEART")

§ 1 General
1.   These General Terms of Sale and Delivery shall be valid for all contracts concluded between the customer and GENEART on delivery and sale of the products manufactured and/or delivered by GENEART to customer (“hereinafter referred to as Work Products”).
2.   These General Terms and Conditions shall apply exclusively. No adverse or altered terms or conditions of the customer shall be binding, unless explicitly agreed by GENEART. GENEART herewith rejects any adverse or altered term or condition of the customer even in the event that GENEART performs the services and/or delivers Work Products without any reservation in knowledge of adverse or altered terms or conditions of the customer provided to GENEART by confirmation letter or otherwise.
3.   These General Terms and Conditions shall only apply with merchants in the course of business and public legal entities such as universities and public research institutes pursuant to § 310 section 1 German Civil Code.

§ 2 Offers and Specifications
1.   The offers of GENEART are not binding, unless expressly stated otherwise in the order confirmation.
2.   Purchase orders of the customer shall be binding.
3.   All contracts between GENEART and the customer on delivery and sale of the Work Products shall only become effective upon written confirmation via email, mail or facsimile of the purchase order or by delivery on the part of GENEART.
4.   GENEART reserves the right to withdraw from accepting the purchase order within two (2) business days following the date of receipt of the purchase order.
5.   The product details mentioned in the catalogues and on the websites of GENEART do not exactly describe their nature and are, therefore, not binding.
6.   Customary deviations from the data on measures, weights, nature and quality of the Work Products and such deviations usual in the line of optimizing and synthesizing genes, gene variants, gene libraries, performing subcloning services and plasmid preparation and such deviations being not unreasonable for the customer are reserved and shall not authorize to claim any warranties.
7.   GENEART is entitled to provide services and/or any product via sub-contractors.

§ 3 Delivery
1.   Observance of agreed time limits shall be subject to due receipt of all documents, necessary authorizations and releases to be supplied by the customer as well as clarification of all technical issues.
2.   GENEART reserves the right to partial shipment as far as this is reasonably acceptable to the customer. Each partial shipment shall be deemed to be a separate transaction according to these terms and conditions, in particular with respect to payments, transfer of liability and the warranty period.
3.    Adherence to delivery commitments on the part of GENEART is subject to the customer having timely and duly fulfilled its obligations.
4.   In case the customer shall be in default of acceptance or shall violate any other contributory obligations, GENEART shall be entitled to demand the loss arising to GENEART including any additional expenses. In such case, also the risk of accidental loss or of accidental deterioration of the Work Products shall pass on to the customer at the time the customer is in default of acceptance.

§ 4 Acceptance
If acceptance is provided for by law, the customer shall be obliged to carry it out; acceptance may only be refused on account of substantial deficiencies. If the customer has not carried out acceptance within a deadline of one (1) week after receipt of the Work Products at the latest, acceptance shall be deemed to be effected.

§ 5 Transfer of Liability
1.    Unless not otherwise agreed, delivery shall be effected "ex works" at GENEART’s premises in Regensburg (Incoterms 2000).
2.    The risk of accidental loss or of accidental deterioration of the Work Products shall pass on to the customer, as soon as GENEART has passed on the goods to the carrier.

§ 6 Prices and Terms of Payment and Credit Card Payment
1.   The prices are inclusive packing costs plus legal value added tax. The shipping costs shall be borne by the customer, unless otherwise agreed. All prices are in EURO, unless another currency has been agreed.
2.   The prices valid on the day of the purchase order shall be valid. In case of substantial increases of costs, the prices are subject to alteration. In case of an increase, GENEART shall notify the customer at the latest four weeks before shipment of the Work Products. In such case, the customer shall be entitled to withdraw from the contract within eight (8) days after service of the notification.
3.   Invoices issued by GENEART shall be paid net without discount at the latest within fourteen (14) days after the date of invoice. The customer shall be in default without a separate reminder thirty (30) days after maturity. In case the customer shall be delayed in payment, GENEART charges default interests from maturity in the amount of 8% (eight percent) points beyond the basis rate. Upon corresponding evidence, GENEART may also claim higher damage caused by default.
4.   Bills of exchange are not accepted as means of payment. Checks are only accepted on account of payment. Payment is deemed to be effected only from that day, at which GENEART can dispose of the invoiced amount without any loss.
5.   On account of its own claims, the customer is entitled to set off only as far as its claims have become res judicata, have not been disputed or have been admitted by GENEART. Further, the customer is entitled to claim any right of retention only inasmuch as its counterclaim is based on the identical contractual relationship. Moreover, assignment of claims by the customer towards GENEART shall be excluded.
6.   Please submit your credit card information via facsimile (+49 941-942-76-780 or +1-416-233-0854) or phone (+49-941-942-76-100 or +1-877-720-4363) only! Transmission via email is insecure! GENEART explicitly disclaims any liability whatsoever for misuse of credit card information which may arise from unsolicited transmission by email.

§ 7 Cancellation of orders
1.   If the customer wants to cancel the purchase order, the following charges of a purchase order shall be payable by the customer: For gene synthesis orders: 50% of gene synthesis price after start of oligonucleotide production, 75% of gene synthesis price after assembly of gene sub-fragments, 100% of gene synthesis price after start of assembly of gene subfragments. For gene variant orders: 25% of gene variant price after oligonucleotide(s) has (have) been ordered, 100% of gene variant price after start of gene variant production process. For gene library construction: 25% of gene library price after oligonucleotides for gene library have been ordered, 100% of gene library price after start of gene library production process. For subcloning services: 100% of subcloning price after start of subcloning of gene in customer vector. For plasmid preparation services: 100% of plasmid preparation price after start of plasmid preparation process. For protein services: Expression Proof, Best Expresser, Best-in-class, Genes to Proteins ‘Pilot’: 100% payment of the service fee after initiation of transfection. Genes to Proteins ‘scale’, Genes to Proteins ‘guaranteed’, Genes to Cell lines ‘protein production’: 50% of service fee after initiation of transfection, 100% of service fee after protein purification is initiated. Genes to Cell lines ‘polyclonal’: 50% of service fee after initiation of transfection, 100% after initiation of expression verification. Genes to Cell lines ‘clonal’: 50% of service fee after initiation of transfection; 100% after initiation of subcloning procedure.
2.   GENEART reserves the right to step back or cancel a customer purchase order for any reason and/or to deliver subfragments of a gene if gene assembly is not possible for any reason.

§ 8 Warranties and Restriction of Use
1.   GENEART guarantees one hundred percent (100%) sequence fidelity between ordered and synthesized / delivered gene sequence. In rare cases, sequences with high degrees of internal repetition or strong secondary structures cannot be sequence verified despite multiple attempts. In these cases, GENEART reserves the right to deliver the final construct length verified if intermediate Work Products had been previously sequence verified.
2.   The Work Products are for end customers only. The resale of Work Products requires the prior written consent of GENEART.
3.   Unless otherwise agreed in writing and subject to paragraphs 4 to 7 and to section 9, the Work Products are delivered without any restriction of use from GENEART’s side. Restrictions of use due to third parties’ patent and/or other proprietary rights, of which GENEART has no knowledge, are expressly reserved and GENEART disclaims any liability in this regard.
4.   Unless otherwise agreed in writing, Work Products not covered by the MGH Patents (as defined below) serve for laboratory and scientific research, only. For Work Products covered by the MGH Patents, the special provisions under section 9 shall apply.
5.   Any use of the Work Products for purposes other than laboratory and scientific research is at customer’s own risk and GENEART expressly disclaims any liability for such use. Any use of the Work Products for human medical purposes or medicinal diagnostic purposes or as medicine or in industrial production is at customer’s own risk and GENEART expressly disclaims any liability for such use. As GENEART is not in the position to foresee or control possible applications, procedures and processes for the use of the Work Products, GENEART expressly disclaims any liability for damages based on improper use or on application of the Work Products beyond the field of approved application as described under paragraph 4. In such cases, the directions for use issued by GENEART are only to be considered as recommendations with no binding force.
6.   Customer is solely responsible for obtaining all approvals by the competent authorities required with respect to its use, handling, storage and disposal of the Work Products for any purpose; GENEART expressly disclaims any liability in this regard.
7.   Customer is solely responsible for its use, handling, storage and disposal of the Work Products in accordance with any applicable laws and regulations; GENEART expressly disclaims any liability in this regard.
8.   GENEART has to be notified of any defects of delivered Work Products or shortages or faulty deliveries at the latest one (1) week after receipt of the Work Products. Hidden defects are to be reported immediately after their detection. If these time limits for claim are not observed, any other existing warranty claims shall be ruled out. Even hidden defects can no longer be asserted, if one (1) year has passed since acceptance.
9.   In case of legitimate notices of defect, shortage or faulty delivery, GENEART will subsequently deliver shortages or at its choice will remedy the defect or deliver a substitute. In the event remedy of the defect should fail or the substitute delivery should be defective, too, according to legal provisions, the customer may rescind the contract or may demand reduction in price. The warranty shall be ruled out in case of improper use and processing of the products manufactured by GENEART.
10.   Warranty claims shall be statute-barred within one (1) year. The limitation period shall start to run when the property is delivered or accepted, respectively.

§ 9 Restriction of Use under the MGH Patents
1.   Work Products, in particular certain nucleic acids and gene sequences, may fall under the MGH Patents (defined as the patent family US Patent 5,786,464 including its counterparts EP 781 329 and CA 2,200,342 (“Overexpression of Mammalian and Viral Proteins”) as well as the patent family US Patent 6,114,148 (“High Level Expression of Proteins”) owned by General Hospital Corporation, doing business as the Massachusetts General Hospital (“MGH”).
2.   Work Products covered by the MGH Patents are designated and may be used for internal research and development purposes (explicitly excluding clinical trial purposes), only.
3.   With the purchase of Work Products covered by the MGH Patents, customer will automatically be granted by GENEART with the worldwide, non-exclusive, perpetual, royalty free right to use the purchased Work Products under the MGH Patents for internal research and development purposes (explicitly excluding clinical trial purposes), only (hereinafter referred to as “R&D Sublicense”).
4.   For using Work Products covered by the MGH Patents for purposes other than internal research and development (explicitly excluding clinical trials), a royalty bearing commercial license is required (“Commercial Sublicense”). Such Commercial Sublicense may be obtained from GENEART.
5.   For the avoidance of doubt and for clarity, it is the sole responsibility of customer to verify whether the respective Work Products are covered by the MGH Patents and to obtain a Commercial Sublicense from GENEART. GENEART expressly disclaims any liability in this regard.
6.   Customer herewith agrees to the assignment of the R&D Sublicense according to paragraph 3 to MGH in case of termination of the agreement between MGH and GENEART granting GENEART the right to grant R&D Sublicenses according to paragraph 3.

§ 10 Damages
1.   Customer shall indemnify, defend and hold harmless GENEART and its affiliates, and its and their directors, officers, employees and agents, against any and all losses, damages, liabilities, causes of action and expenses, including but not limited to reasonable attorneys’ fees and court costs, incurred by or imposed upon GENEART in connection with any claims, actions, proceedings, investigations or litigations arising out of product liability caused by the use of Work Products by customer, except to the extend caused by GENEART’s negligence or wilful misconduct or caused by defects of the Work Products or faulty deliveries.
2.   Any claims for damages are excluded independently from the type of breach of duty, including tortious acts, as far as this is no gross negligent acting or wilful misconduct. In cases other than intentional actions, the amount of damage shall be limited to the typical and foreseeable damage.
3.   In the event of negligent breach of material contractual obligations GENEART shall be liable for any negligence, but only up to the amount of damage which is typical and foreseeable. Any claims resulting from lost profits saved expenses, from claims for damages of third parties as well as from any other direct or indirect consequential damages may not be demanded, unless a feature warranted by GENEART exactly serves to safeguard the customer against such damages.
4.   The limitations on and exclusions of liability according to the above paragraphs 2 and 3 shall not apply for claims, which have been caused by fraudulent conduct, in case of liability for warranted features, for claims according to the Product Liability Law as well as for damages caused by injury of body, life or health.
5.   As far as liability is excluded or limited under the above paragraphs, this shall also apply for employees, representatives or vicarious agents of GENEART.

§ 11 Reservation of title
1.   All DNA sequences generated by GENEART shall retain the exclusive property of GENEART until the customer has launched a purchase order regarding the respective generated DNA sequence to GENEART and has settled the invoice for the respective purchase order. The customer shall not use the so generated gene sequences in any way for any reasons until the customer has launched a purchase order regarding the respective generated DNA sequence to GENEART and has settled the invoice for the respective purchase order.
2.   GENEART shall retain title to all Work Products manufactured and/or delivered until the customer has settled all claims resulting from its business relation to GENEART. The customer undertakes to properly handle the reserved Work Products and neither to pledge nor to assign it by way of security.
3.   Processing or transformation of the reserved Work Products by the customer shall always be effected for GENEART. The expectant right of the customer to the reserved Work Products continues with the transformed subject. If the reserved Work Products are processed with other objects not belonging to GENEART, GENEART shall acquire co-ownership to the new subject in the proportion of the objective value of its reserved goods to the other processed objects at the time of processing. Incidentally, for the subject created by processing the same shall apply as for the reserved goods.
4.   If the reserved Work Products are inseparably mixed with subjects not belonging to GENEART, GENEART shall acquire co-ownership to the new subject in the proportion of the objective value of its reserved Work Products to the other mixed objects at the time of mixture. If mixture is effected in such manner that the subject of the customer is to be considered as the main subject, it is deemed as agreed upon that the customer assigns pro rata co-ownership to GENEART. The customer shall hold in custody the created sole ownership or co-ownership for GENEART.
5.   Provided that the value of the securities which are due to GENEART shall exceed the amount of its claims by more than ten percent (10%), GENEART is obliged to release to an adequate extent; the selection of the securities to be released is incumbent on GENEART. If the customer shall be behind schedule, GENEART shall be entitled to take in custody the delivered Work Products on the basis of its reservation of title until the customer effected payment. The customer shall bear the costs of custody. Revocation of the contract in such a case is only given, if GENEART explicitly declares so. With fulfilment of the claims of GENEART, including all side claims, the securities shall pass over to the customer without particular reassignment.

§ 12 Intellectual Property Rights; Copyrights
The customer is solely liable for infringement of intellectual property rights or copyrights of third parties by execution of its purchase order and the use of the Work Products. The customer has to release GENEART upon first request from all claims of third parties based on such infringement of intellectual property rights or copyrights.

§ 13 Place of Performance, Court Venue, Governing Law, Language of the Contract, Partial Nullity
1.   Provided that the customer is a trader, subject to the provisions of paragraph 2 the place of business of GENEART (Regensburg) shall be the exclusive place of venue. However, GENEART is entitled to bring any action against the customer also before the court of its general venue.
2.   Unless otherwise agreed, the place of performance shall be the place of business of GENEART (Regensburg).
3.   Exclusively German law shall be applicable for the contractual relationship. The provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) shall not apply.
4.   The invalidity or unenforceability of one of the provisions or terms set forth under the subject General Terms and Conditions or under any other agreement, shall not affect the validity of the remaining provisions or terms.