General Terms and Conditions

mtm laboratories AG

Terms and conditions of Sale

1.General.
Hereinforth are set out the terms and conditions under which mtm laboratories, Inc. ("mtm") sells products as specified in the Product List ("Product(s)").
Upon placing an order to purchase any product from mtm the customer and mtm shall with immediate effect be bound by the subsequent terms and conditions.
Except as expressly stated on the face of the Quote provided by mtm to customer, these terms constitute the entire agreement between the parties (the customer and mtm) with respect to the products and the purchase of the products and supersede all prior written and oral agreements, purchase orders, acknowledgements, understandings and representations.

2. Payment.
Invoices are payable on a Net 30 days basis and prices quoted are exclusive of any applicable taxes that will be charged unless Customer furnishes a valid exemption certificate. mtm may charge interest on all amounts not paid by the date due, at the maximum rate permitted by law. Payment of disputed amounts is not binding as a resolution of any other disputed issues, absent written authorization from mtm?s President. A copy of Customer`s purchase document referencing a Quote or proposal may be filed at any time as a financing statement in order to perfect mtm`s security interest.

3. Shipment, Risk of Loss and Packing.
Shipment of the Products will be scheduled upon mtm`s acceptance of Customer`s purchase order. Title to all products, will pass to Customer on delivery to carrier at mtm`s shipping dock regardless of any provisions for payments of freight or insurance, or selection of carrier by mtm, or of the form of shipping documents. Customer pays for shipping cost. mtm is responsible for the cost of insurance paid to cover any losses from mtm`s shipment point to Customer receipt. mtm will assist Customer in processing any loss claims and Customer will be paid directly by mtm`s insurer.

4. Limited Warranty.
When stored under the conditions recommended on the product labeling, mtm warrants proper functioning of the products as stated in the respective Instructions for Use as supplied with each product up to the expiry date stated on the packaging of products. mtm`s sole obligation under this warranty is to replace defective Products. This warranty shall not apply to defects resulting from misuse, negligence or accident, including, without limitation; storage or application outside of the environmental specifications for the Product; use of unauthorized supplies.
THE FOREGOING PROVISIONS SET FORTH MTM`S SOLE AND EXCLUSIVE REPRESENTATIONS, WARRANTIES AND OBLIGATIONS WITH RESPECT TO THE PRODUCT(S), AND MTM MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED. MTM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WHETHER ARISING FROM A STATUE OR OTHERWISE IN LAW, EQUITY OR FROM A COURSE OF DEALING OR USAGE OF TTRADE. MTM`S LIABILITY ARISING OUT OF THE MANUFACTURE, SALE OR SUPPLY OF THE PRODUCT(S) OR SERVICES OR ITS DISPOSITION, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE ACTUAL PURCHASE PRICE PAID BY CUSTOMER FOR THE PRODUCT(S) OR SERVICES EXCEPT AS PROVIDED IN CLAUSES 4 AND 5 BELOW. SUCH LIMITED WARRANTY IS GIVEN SOLELY TO THE ORIGINAL CUSTOMER AND IS NOT GIVEN TO, NOR MAY IT BE RELIED UPON BY, ANY THIRD PARTY INCLUDING, WITHOUT LIMITATION, CUSTOMERS OF CUSTOMER. THIS WARRANTY IS VOID UPON TRANSFER OF PRODUCT BY CUSTOMER SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY, FROM STATE TO STATE.

5. Indemnification and Limitation of Liability.
Clauses 4, 5,and 6 of this agreement are intended to set out the sole basis for mtm`s liability relating to Products and their use. mtm agrees to indemnify Customer for certain losses under certain conditions, as outlined in 5(a) through (c), below. If 5(a) - (c) are inapplicable, then mtm`s liability for damages, indemnification or otherwise for any loss, irrespective of how or by whom incurred, shall be limited to the Limited warranty in clause 4 above. In no event, whether under this section or otherwise, shall mtm be liable to customer or any third-party for attorney`s fees or any incidental, indirect or consequential damages, including lost profits or loss of use.
( a ) CINtec® Histology Kit and CINtec® Cytology Kits is intended to be used in professional medical pathology or cytology laboratories for detection of p16<sup>INK4a</sup> antigen on specimens prepared from cervical samples. Determination of slide adequacy and patient diagnosis is at the sole discretion of the cytotechnologist and pathologists. If and only if it is finally determined by a court of competent jurisdiction that the product sold to customer hereunder was defective and that such defect was solely responsible for an error in diagnosis that caused harm to patient, mtm shall indemnify customer for the compensatory damages paid by customer to discharge the personal injury judgment with respect to product.
( b ) Other than as provided in 6 below, 5(a) above sets forth mtm`s sole obligation to indemnify or pay damages or other monies and shall only apply if (i) the conditions set out therein strictly apply, (ii) the Product has not been resold or leased by customer, (iii) the damages are actually incurred and paid by the customer and not an insurance carrier and are not paid to indemnify third-party, and (iv) the product has not been altered in any way and has been used in accordance with the then current Product specification and labeling.
( c ) For purposes of 5(a), the terms "defective in design" and "manufacturing defect" shall be determined in accordance with the provisions of the American Law Institute`s RESTATEMENT THIRD, TORTS: PRODUCTS LIABILITY (1998).
Customer shall provide mtm with the notice of the intention to seek indemnification under this paragraph as soon as reasonably possible after Customer receives notice of a claim or other liability that is the basis for the indemnity.

6. Patent Indemnity.
( a ) If Customer is sued alleging that Product of Customer`s use thereof infringes a united States patent, mtm agrees to defend the suit, pay all litigation costs, indemnify Customer for any actual damages awarded or any settlement approved by mtm, provided Customer: gives mtm ( i ) written notice within 30 days of Customer`s receipt of notice of any suit; ( ii ) continuous cooperation in the defense, and (iii) complete and sole control over the defense and settlement of any such suit. Customer shall be solely responsible for attorney`s fees and costs it incurs independently of mtm`s representation. ( b ) If Customer is enjoined by a final, unappealable court order, or by settlement approved by mtm, from using the product as sold by mtm, mtm, at its option and in its sole discretion, may ( i ) procure for Customer the right to continue using the Product, ( ii ) replace or modify the Product to avoid infringement, or ( iii ) repossess the Product in exchange for a refund of the depreciation value of the Product. The remedy selected by mtm shall by Customer`s exclusive remedy for any damage, cost, or expense resulting from any court order or settlement enjoining Customer`s use of the Product.
( c ) Notwithstanding any other provision hereof, mtm shall have no obligation to defend, and shall not be liable for any costs or damages awarded, in any suit for infringement concerning ( i ) and Products made by mtm according to specifications supplied by Customer, ( ii any infringement alleged, based on use by Customer of the Product as sold by mtm in combination with another item not sold by mtm, where the alleged infringement arises from the combination or from the practice of a method made possible by the combination, ( iii ) any infringement alleged, based on any Product as modified by or used contrary to Product specifications by any party other than mtm without mtm`s permission, or ( iv ) any damage, cost, fee, or expense incurred in connection with, or any injunction, sanction, or other order resulting from any suit that mtm is not given the reasonable opportunity to defend.

7. Choice of Law and Enforcement.
Any disputes arising in connection with the products or the purchase of Products will be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts, and the parties acknowledge that the courts within the Commonwealth of Massachusetts shall have jurisdiction.

8. Delays in Performance.
mtm shall not be liable for failure or delay in shipment due to shortage of materials, labor difficulties, floods, fires, actions taken or threatened by any governmental agencies, acts of God or other contingencies or acts not within the sole control of mtm. mtm reserves the right ( a ) during the period of any shortage to allocate its available supplies it may determine equitable without any liability to Customer, and ( b ) to make substitutions and modifications in the specification of any Product, provided such substitutions or modifications do not materially affect the performance of Products.

9. Bankruptcy.
Except as may be prohibited by applicable bankruptcy laws, in the event of any insolvency or inability to pay debts as they become due by a party hereto, or voluntary or involuntary bankruptcy proceeding by or against a party hereto, or appointment of a receiver or assignee for the benefit of creditors, the other party may elect to cancel any unfulfilled obligations hereunder.

10. Notices.
Any required notices shall be given in writing to mtm laboratories, AG BioPark Im Neuenheimer Feld 583 D-69120 Heidelberg Germany, and to Customer at the address as evidenced on the face of this Proposal, or to such other address as either party may substitute by written notice to the other.

11.Assignability, Waiver and Severability.
Customer may not assign any interest in an accepted order without the prior written consent of mtm. Subject to the foregoing, the rights and obligations herein shall be binding upon the successors and assigns of both mtm and Customer. mtm`s failure to exercise any of its rights shall not constitute or be deemed a waiver or forfeiture of any rights hereunder. If any of these provisions shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.

12.Export.
Unless otherwise agreed to by mtm, if Customer exports Products purchased hereunder, Customer shall assume all responsibility for obtaining any required export authorization and shall comply with all the applicable laws, rules and regulations of all governmental authorities, including, without limitation, the Export Administration Act. Customer shall not export or re-export technical data supplied by mtm or the direct product of such data in violation of applicable export regulations and without the explicit written approval of mtm.

13.Compliance with Laws.
mtm and Customer agree to comply with all federal and state laws that govern the enforceability and performance of this contract. mtm further agrees that it will comply with all applicable federal, state and local laws, including , but not limited to the following: ( a ) Executive Order 11246 as amended, which provides in part that mtm will take affirmative action with regard to recruiting and retaining minorities in all levels of its workplace, including all requirements set forth in Section 202 of the executive Order which are incorporated by reference; ( b ) laws prohibiting discrimination on the basis of an applicant
S or employee`s protected status; 9 c 0 the affirmative action and nondiscrimination requirements provided by 41 CFR 60-250.4(m) and 41 CFR 60-741.4(f) protecting the interests of handicapped workers and disabled and Vietnam-era veterans; and ( d ) the requirements of section 6, 7, and 12 of the Fair Labor Standards Act of 1938, as amended, and the regulations and orders of the Administrator of the Wages and Hour Division issued under Section 14 thereof.

14.Use of Data.
The parties expressly accept the following uses of data in connection with purchase of product:
( a ) the provision by mtm of usage, sales or purchase data to manufacturers, ( b) the provision of information by mtm or the Customer to any purchasing groups of which the Customer is a member (as required by the applicable Agreement) and ( c ) the provision by mtm of usage, sales or purchase data to data collection entities provided that the Customer is not identified.
Both parties agree to comply with the applicable provisions of the Administrative Simplification section of the Health Insurance Portability and Accountability Act of 1996, as codified at 42 U.S.C. §1320d through d-8, as amended from time to time("HIPPAA"). Customer acknowledges that in no event shall mtm have access to any Protected Health Information ("PHI") as defined by HIPPAA, and is therefore not a Business Associate under HIPPAA. mtm acknowledges that it may inadvertently gain access to PHI, and will therefore, upon request, furnish to Customer an executed HIPPAA Confidentiality Agreement.