EXHIBIT
10.42 
  WAFERGEN
   Exclusive
Distribution Agreement
  This
Exclusive Distribution Agreement (“Agreement”) is made and
entered into as of _______________, 200_ (“Effective Date”) by and
between WaferGen Bio-Systems, Inc., a Nevada corporation with offices at 46531
Fremont Blvd., Fremont, CA  94538 (“WaferGen”), and
__________________________, a ________________ corporation with its principal
place of business at ___________________________ (“Distributor”).
   Recitals
  Whereas,
WaferGen has rights to license and distribute, and to sublicense others to
license and distribute, the Products in the Territory (as those terms are
defined below); and
  Whereas,
WaferGen desires to have Distributor, and Distributor desires to, license,
market and distribute the Products in the Territory pursuant to the terms and
conditions of this Agreement.
  Now,
Therefore, in consideration of the mutual representations, warranties,
covenants and other terms and conditions contained herein, WaferGen and
Distributor agree as follows:
   Agreement
  1.  Definitions
  1.1  “Confidential Information”
shall mean any information disclosed by WaferGen to Distributor regarding the
Products, proposed new Products or other information related to WaferGen’s
technology or business that Distributor knows, or should know in light of the
circumstances under which such information is disclosed, is WaferGen’s
confidential or proprietary information.  Confidential Information
shall include the terms of this Agreement and Distributor
Prices.  Notwithstanding the previous sentence, information shall not
be deemed Confidential Information to the extent that Distributor can document
that such information:  (a) was generally known and available in
the public domain at the time it was disclosed or subsequently becomes generally
known and available in the public domain through no fault of Distributor;
(b) was known to the Distributor at the time of disclosure; (c) is
disclosed with the prior written approval of WaferGen; (d) was
independently developed by Distributor without any use of the Confidential
Information; or (e) becomes known to Distributor from a source other than
WaferGen without breach of this Agreement by Distributor and is otherwise not in
violation of WaferGen’s rights.
  1.2  “Distributor Prices” shall mean
the applicable price for each Product payable by Distributor to
WaferGen.
  1.3  “Documentation” shall mean the
standard user documentation for the Products, including without limitation, user
manuals, reference manuals, training manuals, installation manuals and related
materials and any derivatives of the foregoing.
  1.4  “End User” shall mean a Person,
other than Distributor, who has purchased the Hardware portion of Products and
has licensed the Software portion for the Products for ordinary internal
business usage and not for purposes of further resale.
  1.5  “End User License Agreement”
shall mean WaferGen’s then-current applicable terms and conditions applicable to
End Users for the license of the Software and the sale of the Hardware, which
term and conditions shall be subject to revision from time to time, in
WaferGen’s sole discretion.
  1.6  “Hardware” shall mean the
hardware portion of the Products.
  1.7  “Intellectual Property Rights”
shall mean, on a world-wide basis, any and all now known or hereafter known
tangible and intangible (a) rights associated with works of authorship
including, without limitation, copyrights, moral rights and mask-works,
(b) rights associated with trademarks, service marks, trade names and
similar rights, (c) trade secret rights, (d) patents, designs,
algorithms and other industrial property rights, (e) rights in domain
names; (f) all other intellectual and industrial property rights of every
kind and nature and however designated, whether arising by operation of law,
contract, license or otherwise, and (g) all registrations, applications,
renewals, extensions, continuations, divisions or reissues thereof now or
hereafter existing, made or in force (including any rights in any of the
foregoing).
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  1.8  “Parts” shall meancomponent, spare and/or replacement parts of the Products and other parts
which are used for the service or maintenance of the Products.
  1.9  “Person” shall mean any natural
person, corporation, partnership, firm, association, government, governmental
agency or any other entity, whether acting in an individual, fiduciary or other
capacity.
  1.10  “Products” shall mean the
products identified on Exhibit A hereto,
which may be amended from time to time by WaferGen by providing thirty (30) days
prior written notice to Distributor.  As used herein, “Products” shall include the
applicable Software, the Hardware, the Documentation, and Parts individually or
collectively.
  1.11  “Software” shall mean any and
all (a) software embedded within the Products, and (b) stand alone software
provided with the Products, and shall include any updates and modifications
thereto provided by WaferGen during the term of this Agreement.
  1.12  “Specifications” shall mean
with the technical and functional specifications for the Products set forth in
the applicable Documentation for such Products.
  1.13  “Support Services” shall mean
the Level One and Level Two maintenance and support services set forth in the
attached Exhibit C.
  1.14  “Territory” shall mean that
geographical area(s) set forth in the attached Exhibit A.
  1.15  “Trademarks” shall mean the
trademarks, trade names and service marks set forth in the attached Exhibit B, which
may be amended from time to time by WaferGen by prior written notice to
Distributor during the term of this Agreement.
  2.  Grant
of Rights
  2.1  Grant of
Distributorship.  Subject to the terms and conditions of this
Agreement, WaferGen hereby grants to Distributor the non-transferable,
non-sublicensable, right during the term of this Agreement, exclusively within
the Territory, to:  (a) market, sell and/or otherwise distribute
the Hardware to End Users for installation and use within the Territory;
(b) market and solicit licenses for the Software and Documentation to End
Users in the Territory solely in combination with such Hardware; and
(c) distribute the Software and Documentation to such End Users, provided
that such End Users have validly entered into an End User License Agreement with
WaferGen.  Distributor shall distribute the Products solely in the
form and packaging obtained from WaferGen.
  2.2  Grant of License to Demonstration
Units, Software and Documentation.  With respect to
demonstration units of the Products purchased by Distributor as described in
Section‎3.5, WaferGen
hereby grants to Distributor the non-exclusive, non-transferable,
non-sublicensable, royalty-free right and license during the term of this
Agreement, within the Territory, to use the Software and Documentation for the
sole purpose of (a) demonstrating, marketing, selling, soliciting licenses for,
and supporting the Products, solely with respect to existing and potential End
Users, including with respect to the use, installation and operation of
demonstration units of the Products, and (b) otherwise fulfilling Distributor’s
obligations expressly set forth in this Agreement.
  2.3  Grant of License to
Trademarks.  Subject to the terms and conditions of this
Agreement, WaferGen hereby grants to Distributor the non-transferable,
non-sublicensable right during the term of this Agreement, exclusively within
the Territory, to use, reproduce and display the Trademarks solely in its
advertising and promotion of the Products hereunder, in accordance with
applicable law and WaferGen’s Trademark usage guidelines, as provided by
WaferGen from time to time, provided that prior to the use of any Trademarks,
Distributor will provide samples of all materials bearing the Trademarks,
including, without limitation, any advertising, packaging and other publicly
disseminated materials, and obtain WaferGen’s prior written approval
before.  Distributor will promptly correct any improper use of the
Trademarks, whether discovered by Distributor or by
WaferGen.  Distributor shall not use any other trademark or service
mark confusingly similar to the Trademarks, or combine the Trademarks with other
marks without the prior written approval of WaferGen.  Distributor
shall not affix any Trademark to products other than the genuine Products
provided by WaferGen.  Distributor shall ensure that the nature and
quality of any services it provides in connection with its marketing and
distribution of the Products hereunder shall be first rate and professional and
shall otherwise conform to the standards set by WaferGen.  Distributor
agrees to cooperate with WaferGen in facilitating WaferGen’s monitoring and
control of the nature and quality of any services that Distributor provides in
connection with the Trademarks.  Distributor understands and agrees
that the use of any Trademark in connection with this Agreement shall not create
any right, title or interest in or to the Trademark, and that all such use and
goodwill associated therewith shall inure solely to
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  the
benefit of WaferGen.  Distributor will not, and is not entitled to,
register the Trademarks or similar trademarks in any class of products or
services in the Territory.  Distributor will not challenge the
validity of the Trademarks or challenge WaferGen’s ownership of the Trademarks
or the enforceability of WaferGen’s rights therein.
  2.4  Exclusivity;
Milestones.  The exclusive licenses in the Territory granted to
Distributor in Sections‎2.1,‎2.2and‎2.3 above shall
be subject to Distributor maintaining the purchasing milestones set forth in
Exhibit A,
applicable to the first year (or portions thereof) of the term.  Exhibit A shall be
amended in writing by the parties to include the purchasing milestones for
subsequent years (or portions thereof), provided that if the parties fail to
amend the purchasing milestones in Exhibit A for any
reason, then the purchasing milestones applicable to the first year (or portions
thereof) of the term of this Agreement will be applicable to all subsequent
years (or portions thereof) of the term of this Agreement.  In the
event that Distributor does not meet the purchasing milestones set forth in
Exhibit A, at
WaferGen’s option and sole discretion, and upon written notice to Distributor,
the licenses granted in Sections‎2.1,‎2.2and‎2.3 above shall
become non-exclusive in nature, and all other terms and conditions of this
Agreement shall remain unchanged in full force and effect.
  3.  Distributor
Obligations
  3.1  Marketing and
Promotion.  Distributor shall use its best efforts to
advertise, market and promote the Products in the
Territory.  Distributor shall determine the marketing campaign it will
undertake, subject to WaferGen’s reasonable approval of such marketing campaign,
which will be consistent with the promotion activity of Distributor’s other
similar products in
the Territory.  WaferGen agrees to provide, at its own cost,
and at its sole discretion, and upon the request of the
Distributor:  (a) advertising and promotional assistance in the form
of copy and camera ready artwork for advertising, trade shows, seminars and
other promotional activities, and (b) sales manuals, service manuals, sales
literature and other sales promotional documents for demonstrations, tradeshows
and conferences.WaferGen will provide the
Distributor with such sales materials as well as electronic copies of the
Documentation in English.  Distributor will be responsible to
translate such sales materials and Documentation into the appropriate local
language(s) for use in the Territory and, subject toSection‎2.3, may also create its own
sales material and literature in the appropriate local language(s) for use in
the Territory.
  3.2  Generally.  Distributor
shall, at its own cost and expense, use best efforts to:
  (a)  advertise,
market and promote the Products throughout the Territory;
  (b)  meet the
standards set by WaferGen from time to time for displaying, demonstrating and
explaining the operation and use of the Products;
  (c)  conduct
all business diligently and represent WaferGen in a professional manner that
brings credit to WaferGen and enhances the reputation of WaferGen and the
Products;
  (d)  refrain
from making claims or representations concerning the Products, other than the
applicable Specifications for each Product or other materials provided by
WaferGen;
  (e)  refrain
from discrediting or disparaging either the Products or WaferGen;
  (f)  include
in all advertising and promotional materials all applicable copyright and
trademark notices as they appear on the Products or as WaferGen specifies from
time to time;
  (g)  consult
with WaferGen regarding any advertising or trade practice that might affect the
good name, trademarks, goodwill or reputation of WaferGen or the Products, and
comply with any requests of WaferGen with regard to any such
practice;
  (h)  as
reasonably requested by WaferGen, assist WaferGen in improving the promotion,
distribution and licensing of the Products; and
  (i)  comply
with any other reasonable requests of WaferGen in facilitating the sale and
distribution of the Products.
  3.3  Training.  WaferGen shall provide
reasonable and sufficient sales, customer support and service training to
Distributor’s staff as the parties mutually agree upon in good
faith.  The parties shall mutually agree on whether such
training shall take place in California or within the Territory.  All
travel, lodging and other costs associated with such training shall be borne by
Distributor.
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  3.4  Personnel Requirements;
Services.  Distributor shall maintain an adequate staff of
trained sales and support personnel to enable Distributor to develop and support
the market for the Products in the Territory in an effective
manner.  All services provided by Distributor in connection with the
Products shall be provided in a professional, workmanlike manner consistent with
highest industry standards.
  3.5  Demonstration
Units.  Distributor shall purchase from WaferGen and maintain
at its own expense the minimum number of demonstration units of the Products as
specified in Exhibit
A, subject to the discounts applicable to demonstration units described
in Exhibit
A.  Distributor shall not utilize more than one (1)
demonstration unit of each Product at one time without WaferGen’s prior written
approval.  Distributor may not resell demonstration units of the
Products, except to the extent that Distributor is replacing an existing
demonstration unit, in which case the existing demonstration unit may be sold
subject to the terms and conditions of this Agreement.
  3.6  Inquiries from Outside the
Territory.  Distributor will refer all inquiries regarding the
Products from Persons located outside the Territory, and requests for Products
to be shipped outside the Territory, to WaferGen.  Distributor shall
not be entitled to any compensation for such referrals.
  3.7  Breach by End
User.  Distributor shall advise WaferGen immediately if
Distributor becomes aware of any breach by an End User of any material provision
of an End User License Agreement or the use of the Products by an End User
outside of the Territory.
  4.  Distributor
Restrictions
  4.1  General
Restrictions.  Distributor shall have no right to market, sell,
license (including any soliciting of licenses) or distribute Products, or any
part thereof outside the Territory, to any Person who is not an End User, or to
any Person who develops, sells, markets, distributes or manufactures cell
incubation products, software and/or parts.  For avoidance of doubt,
Distributor may not market, sell, distribute or license any Products, or any
portions thereof, through a subdistributor.  Distributor shall not
have the right to use, manufacture, assemble or modify the
Products.  Distributor shall not distribute the
Products:  (a) by mail order, (b) by rental or lease,
(c) in bulk for redistribution, (d) to any Person whom
Distributor knows or should reasonably conclude will use the Products primarily
for purposes of benchmark or similar testing or in connection with timeshare or
service bureaus, and (e) to any Person who Distributor knows or should
reasonably conclude will use the Products outside of the Territory.
  4.2  Advertising.  Distributor
shall use only promotional and marketing material relating to WaferGen or the
Products that has been approved in writing by WaferGen.
  4.3  Representations.  Notwithstanding
anything to the contrary herein, Distributor shall have no right
to:  (a) enter into sublicenses or other agreements with regard
to the Software or (b) enter into any legally binding obligations on behalf
of WaferGen.
  4.4  Copying.  Distributor
shall not copy, in whole or in part, any Software or Documentation without the
prior written authorization of WaferGen, except that Distributor may make one
(1) copy of any Software and Documentation for back-up or archival
purposes.  Software distributed to End Users shall be only
(a) that Software reproduced and packaged by WaferGen, or (b) in the
case of Software embedded within the Products, such Software as is embedded
within such Products by WaferGen.
  4.5  Reverse
Engineering.  Distributor shall not translate, disassemble or
reverse engineer the Products, in whole or in part (except to the extent
expressly permitted by applicable law, notwithstanding a contractual obligation
to the contrary), or determine or attempt to determine any source code,
algorithms, methods, or techniques used or embodied in the Products, in whole or
in part.
  5.  Installation,
Maintenance and Support
  Distributor
shall be solely responsible to install and implement the Products for the End
Users and to change and replace Parts.  As between WaferGen and
Distributor, Distributor shall be responsible for providing End Users with Level
One Support Services for the Products, as set forth in Exhibit C.  WaferGen
shall provide Distributor (but not End Users directly) with Level Two Support
Services for the Products, as set forth in Exhibit C.
  
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  6.  Changes
in Specifications and Designs
  WaferGen
reserves the right at any time, and from time to time, to change the
specifications, functionalities, features and/or or designs of the Products and
to withdraw the availability of the Products.  WaferGen has the right
to discontinue the distribution or availability of any Product upon thirty (30)
days written notice to Distributor, provided that WaferGen shall fulfill its
obligations with respect to accepted purchase orders for the discontinued
Products.
  7.  Ownership
of Intellectual Property
  Distributor
acknowledges that the Products and their sequence, structure and organization
are proprietary to WaferGen and that WaferGen or its suppliers and licensors
retain exclusive ownership of all Intellectual Property Rights embodied in the
Products, each portion thereof, and the Trademarks.  Distributor shall
take all reasonable measures to protect WaferGen’s Intellectual Property Rights
in any Product.  Except as provided herein, Distributor is not granted
any rights to any Intellectual Property Rights with respect to any
Product.
  8.  Confidential
Information
  Distributor
may receive WaferGen’s Confidential Information.  Distributor agrees
that, during and after the term of this Agreement, it shall use the Confidential
Information solely for purposes of performing its obligations and/or exercising
its rights under this Agreement, and shall not disclose to any third party any
Confidential Information without the prior written consent of
WaferGen.  Distributor may disclose the Confidential Information only
to its employees as is reasonably necessary to allow Distributor to perform its
obligations under this Agreement and to obtain the benefits thereof, provided
that each such employee is under a written obligation of nondisclosure which
protects the Confidential Information under terms substantially similar to those
herein.  Distributor shall take the same degree of care that it uses
to protect its own confidential and proprietary information of similar nature
and importance (but in no event less than reasonable care) to protect the
confidentiality and avoid the unauthorized use, disclosure, publication or
dissemination of the Confidential Information.  In the event that
Distributor is legally compelled to disclose such Confidential Information
pursuant to a valid court order, prior to any such compelled disclosure,
Distributor shall (a) give WaferGen reasonable advance notice of any such
disclosure, (b) shall cooperate with WaferGen in protecting against any such
disclosure and/or obtaining a protective order narrowing the scope of such
disclosure and/or use of the Confidential Information, and (c) and limit such
disclosure to only the party entitled to receive it.
  9.  Forecasts;
Orders; Shipping; Cancellation
  9.1  Forecasts.  Commencing
within sixty (60) days after the Effective Date and monthly thereafter,
Distributor shall provide to WaferGen a good faith three (3) month rolling
non-binding forecast of Distributor’s quantity and shipment requirements for the
Products.
  9.2  Purchase
Orders.  Purchases of Products shall be initiated by
Distributor via a written purchase orders which shall include (a) each Product
ordered and the quantity thereof, (b) a commercially reasonable carrier or means
of transportation or routing, (c) the address within the Territory to which
Products are to be shipped, and (d) the requested delivery date, which shall be
at least sixty (60) days after the date WaferGen receives the applicable
purchase order.  WaferGen may, but is not required to, accept any
purchase order which specifies a delivery date earlier than sixty (60) days
after the date WaferGen receives the applicable purchase
order.  WaferGen shall respond to the proposed purchase order by
either accepting or rejecting the proposed purchase order in its sole
discretion.  Failure of WaferGen to accept or reject any proposed
purchase order within seven (7) business days after receipt thereof shall
constitute rejection of such proposed purchase order.  If requested by
Distributor, WaferGen will provide the reason for rejecting a purchase
order.  Each purchase order shall be signed by an employee of
Distributor duly authorized by Distributor to place purchase orders and bind
Distributor with respect thereto.  WaferGen shall use commercially
reasonable efforts to make deliveries of purchase orders so accepted in a timely
manner, but WaferGen shall not be liable for any delay in delivery or error in
filling any purchase orders for any reason whatsoever.  If purchase
orders for the Products exceed WaferGen’s inventory, WaferGen shall allocate
available inventory on a basis WaferGen deems equitable in its sole
discretion.  All purchase orders placed by Distributor hereunder shall
be governed by the terms and conditions of this Agreement which shall supersede
any different or additional terms on Distributor’s purchase
orders.  In the event of a conflict between the provisions
of
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  this
Agreement and the terms and conditions of any purchase orders, the provisions of
this Agreement shall prevail and control.
  9.3  Packing; Shipping;
Insurance.  All Products will be suitably packed for shipment
by air, unless otherwise requested by Distributor and agreed in writing by
WaferGen.  The Distributor Prices include standard packing for
commercial air shipment, and Buyer will pay for any increased cost of special
packaging it requests.  WaferGen may make delivery for a single
purchase order in installments and may issue a separate invoice for each
installment.  All shipments shall be made FCA origin (WaferGen’s
facility at46531 Fremont Blvd.,Fremont,
CA94538or successor
location)(FCAas described in Incoterms
2007) to Distributor’s address in the Territory as set forth in the
applicable purchase order.  Delivery shall be deemed complete and risk
of loss or damage to the Products shall pass to Distributor upon delivery to the
carrier, subject to WaferGen’s rights of stoppage in transit and
reclamation.  If Distributor has not identified the carrier to
transport the Products within the applicable purchase order, WaferGen may select
the carrier and shall purchase on behalf of Distributor appropriate shipping
insurance.  Distributor shall pay all costs of transportation,
insurance, export and import fees, customs brokerage expenses and similar
charges.  Distributor, at its expense, shall make and negotiate any
claims against any carrier, insurer, customs broker, freight forwarder or
customs collector.
  9.4  Cancellation and
Rescheduling.  Upon the acceptance of a purchase order by
WaferGen, such purchase order may not be cancelled by Distributor for any
reason.  WaferGen will make commercially reasonable efforts to
reschedule the delivery date of an accepted purchase order, if requested by
Distributor, provided that (a) the rescheduled delivery date is within thirty
(30) days after the original delivery date, and (b) WaferGen receives the
rescheduling request within fifteen (15) days after WaferGen’s original
acceptance of such purchase order.
  9.5  Initial
Purchase.  Effective as of the Effective Date, Distributor
hereby agrees to purchase, the initial purchase of Products (including
demonstration units) identified on Exhibit A and will
submit a purchase order for such initial purchase within three (3) business days
after the Effective Date.
  10.  Price;
Taxes; Payments; Records; Reports
  10.1  Distributor
Prices.  The Distributor Prices of the respective Products
ordered by Distributor from WaferGen shall be set forth in WaferGen’s
distributor price list in effect at the time WaferGen accepts the applicable
purchase order for the Products.  The Distributor Prices in effect as
of the Effective Date are set forth in Exhibit A, provided
that WaferGen reserves the right to change the Distributor Prices at any time
with or without notice to Distributor.  Distributor is free to
establish prices for the sale of Products to End Users.  The
difference between the price Distributor charges End Users for Products and the
Distributor Prices Distributor pays WaferGen for Products shall be Distributor’s
sole compensation under this Agreement.
  10.2  Shipping Costs;
Taxes.  The total amount payable for the Products shall include
the Distributor Prices, plus the appropriate amount for shipping, insurance and
other costs described in Section‎9.3
(collectively, “Shipping
Costs”).  In addition to the Distributor Prices and Shipping
Costs due to WaferGen under this Agreement, Distributor shall pay, indemnify and
hold WaferGen harmless from any sales, use, excise, import or export, value
added or similar tax, not based on WaferGen’s net income (collectively the
“Taxes”) and any
penalties or interest associated with any of the Taxes, imposed by any
governmental authority with respect to either or both of any payment to be made
by Distributor to WaferGen under this Agreement or any Products to be delivered
by WaferGen under this Agreement.
  10.3  Payments for
Products.  Payment for the Products ordered from WaferGen and
Shipping Costs shall be due and payable within thirty (30) days after the date
of WaferGen’s invoice therefor.  Payment will be made only in United
States Dollars, by wire transfer to the bank designated by WaferGen or other
means satisfactory to WaferGen.  Payments made by Distributor, even if
marked to indicate payment in full, will be deposited by WaferGen or otherwise
accepted by its bank notwithstanding such markings and such deposit and/or
acceptance shall not indicate WaferGen’s acceptance of the payment as payment in
full unless the remittance actually constitutes payment of all sums
owed.  All sums not paid when due shall accrue interest daily at the
lesser of a monthly rate of 1.5% or the highest rate permissible by law on the
unpaid balance until paid in full.
  10.4  Credit.  In the
event that Distributor fails to pay any amounts due and such failure extends
beyond forty-five (45) days after the applicable invoice date or is otherwise
more than fifteen (15) calendar days late, WaferGen may, at any time thereafter
and in its sole discretion and without any liability to Distributor, suspend
production, shipments, deliveries, and/or performance of Support Services, and
demand such other terms or conditions or
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  security
arrangements for Distributor’s due performance, as WaferGen, in its sole
discretion, deems appropriate, including without limitation requiring full or
partial payment be made upon acceptance of a purchase order or prior to shipment
of the Products.  If, within the period stated in such demand, but in
no event longer than thirty (30) days, Distributor fails to pay in full all
amounts due WaferGen or otherwise fails to give adequate assurance of due
performance, WaferGen may (1) by notice to Distributor, treat such failure as a
repudiation by Distributor of this Agreement, whereupon WaferGen may in its sole
discretion cancel all outstanding purchase orders, refuse to accept any
additional purchase orders, and any amounts unpaid hereunder shall immediately
become due and payable, or (2) make shipments of Products under reservation of a
security interest and demand payment against tender of documents transferring
title.  Distributor shall be responsible for all collection costs
(including reasonably attorneys’ fees and litigation costs) associated
WaferGen’s collection of amounts not paid when due under this
Agreement.  Distributor hereby represents to WaferGen that Distributor
is now solvent and agrees that each purchase order submitted by Distributor
under this Agreement shall constitute reaffirmation of this representation at
such time.
  10.5  Records and
Audit.  Distributor agrees to maintain complete, clear and
accurate records for at least two (2) years backwards at any point in time of
its activities under this Agreement, including, without limitation, its
inventory, sales of each Product and the identity and address of each End User,
in accordance with standard business practices.  Upon three (3) days
prior written notice to Distributor, Distributor shall permit WaferGen or
persons designated by WaferGen to inspect records pertaining to the Products and
any other materials provided to Distributor by WaferGen to ensure compliance by
Distributor with this Agreement.  Any such inspection and audit shall
be conducted during regular business hours and in such a manner as not to
interfere unduly with normal business activities of Distributor.
  10.6  Reports.  Distributor
shall provide WaferGen a monthly report of its inventory and sales of
Products.  Inventory shall be reported by Product as of the end of
each month.  Sales shall be reported in terms of the volume of each
Product distributed, and each End User name, serial number of the Products
purchased by such End User, and location of the Products.  Distributor
shall promptly provide such additional information as WaferGen may request,
including, without limitation, information regarding market conditions and
Distributor’s marketing plans and progress, marketing staff and financial
condition.  Distributor shall promptly communicate to WaferGen any
problems with or changes or improvements to the Products suggested by any
customer or any employee of Distributor.
  11.  Acceptance;
Warranty
  11.1  Acceptance.  Distributor
shall have a period of fourteen (14) days after receipt of the Products (“Acceptance Period”) to inspect
the Products for substantial nonconformity with the applicable Specifications
(“Nonconformities”).  During
the Acceptance Period, Distributor may reject Products with Nonconformities, in
which case Distributor shall provide WaferGen before the end of the Acceptance
Period with a written notice of rejection that:  (a) specifies in
reasonable detail the Nonconformities that are the basis for the rejection, and
(b) is accompanied by test suites and test results, if applicable, evidencing
(and allowing WaferGen to replicate) such Nonconformities.  Any
Products not specifically rejected by Distributor during the Acceptance Period
shall be deemed finally accepted by Distributor.  For all Products
which have Nonconformities, Distributor must obtain from WaferGen a return
material authorization (“RMA”) number prior returning
such Products.  Distributor will return rejected Products to WaferGen
in their original packing, with the RMA number marked on the packaging, and
subject to WaferGen’s shipping and insurance instructions.  If
WaferGen’s examination of the returned Products confirms the existence of
Nonconformities, WaferGen shall be obligated to, at its sole option, (i) repair
the Products, (ii) replace such Products with conforming Products, or (iii)
credit Distributor the purchase price paid for such Products.
  11.2  Warranty to End Users
Only.  WaferGen makes warranties to only End Users regarding
the Products pursuant to the warranty terms and conditions set forth in the
Documentation, and no warranty is extended directly to
Distributor.  The warranty provided by WaferGen to End Users is that
the Products will be free of defects in material and workmanship and shall
otherwise not have any material Nonconformities for a period of one (1) year
after the delivery date thereof to Distributor (“Warranty Period”) and that the
End User’s sole and exclusive remedy arising out of or relating to such warranty
shall be to return the defective Products to Distributor (and not to WaferGen
directly) for repair or replacement in accordance with WaferGen’s warranty terms
and conditions.
  
 
  la-950615  (rev
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 Exclusive Distribution Agreement(Rev 05/08)
                                                           
Page 7of 15   WaferGen Confidential
  
 11.3  Distributor Warranty
Service.  Upon the return by an End User to Distributor of a
defective Product which qualifies under the warranty provisions of the
applicable End User License Agreement and which is returned during the Warranty
Period, Distributor shall first make best efforts to repair the Product and if
Distributor is not able to do so, then Distributor will first obtain a RMA
number from WaferGen and then return such defective Product to WaferGen for
warranty service.  Distributor must return the defective Product,
marked with the RMA number, to WaferGen within thirty (30) days after
Distributor’s receipt of the defective Product from the End
User.  Shipping cartons that are not marked with RMA numbers shall be
rejected by WaferGen.  The transportation charges for all Products
returned to WaferGen under warranty shall be borne by
Distributor.  WaferGen’s obligations under this Section shall not
apply if WaferGen’s testing and examination discloses that any alleged material
Nonconformities or defects in the Products do not exist or were caused by
Distributor’s or the End User’s misuse, neglect, modification, improper
installation or testing, unauthorized attempts to repair, by an accident or by
other reason not caused by WaferGen. WaferGen shall pay the transportation
charges involved in the return of warranted Products to
Distributor.  Hardware returned to WaferGen may be repaired or
replaced by WaferGen on a unit-for-unit basis.
  11.4  Disclaimer.  EXCEPT
AS SET FORTH HEREIN, WAFERGEN DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED
OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND ALL
WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE
OF TRADE.  WAFERGEN NEITHER ASSUMES, NOR AUTHORIZES ANY OTHER PERSON
TO ASSUME FOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE PRODUCTS,
INCLUDING, WITHOUT LIMITATION, LIABILITY ARISING OUT OF THE DELIVERY OR USE OF
THE PRODUCTS.
  12.  Consequential
Damages Waiver
  IN NO
EVENT SHALL WAFERGEN BE LIABLE TO DISTRIBUTOR, ANY END USER OR ANY OTHER THIRD
PARTY UNDER ANY LEGAL THEORY FOR ANY INDIRECT, SPECIAL, INCIDENTAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOSS OF PROFITS, REVENUE,
BUSINESS, SAVINGS, DATA OR USE INCURRED BY DISTRIBUTOR OR ANY THIRD PARTY, EVEN
IF WAFERGEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  13.  Limitation
of Liability
  NOTWITHSTANDING
ANY OTHER PROVISION OF THIS AGREEMENT, AND TO THE FULLEST EXTENT ALLOWED UNDER
APPLICABLE LAW, WAFERGEN’S AGGREGATE LIABILITY TO DISTRIBUTOR OR ANY THIRD PARTY
FOR CLAIMS RELATING TO THIS AGREEMENT, WHETHER FOR BREACH, NEGLIGENCE,
INFRINGEMENT, IN TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE
TOTAL PAYMENTS ACTUALLY RECEIVED BY WAFERGEN UNDER THIS AGREEMENT IN THE TWELVE
(12) MONTH PERIOD PRECEDING EITHER PARTY’S INITIAL NOTICE TO THE OTHER PARTY OF
ANY CLAIM OR POTENTIAL CLAIM HEREUNDER.  FURTHERMORE, WAFERGEN SHALL
NOT BE LIABLE OR RESPONSIBLE FOR ANY DAMAGES FOR DELAYS IN MANUFACTURE,
ASSEMBLY, SHIPMENT OR FURNISHING OF THE PRODUCTS OR ANY SERVICES.
  14.  Indemnification
  14.1  Distributor
Indemnity.  Distributor shall defend, indemnify and hold
WaferGen harmless against any and all damages, costs, liabilities, expenses
(including reasonable attorneys’ fees) and settlement amounts incurred in
connection with any suit, claim or action by any third party against WaferGen as
a result of:  (a) negligence, misrepresentation, error or
omission on the part of Distributor or its representatives relating to or
concerning the Products; and (b) Distributor’s breach of this
Agreement.
  14.2  WaferGen
Indemnity.  WaferGen shall defend, indemnify and hold
Distributor harmless against any and all damages, costs, liabilities, expenses
(including reasonable attorneys’ fees) and settlement amounts incurred in
connection with any suit, claim or action by any third party alleging that the
Products furnished and used within the scope of this Agreement infringe any
trade secret, copyright, United States patent issued as of the Effective Date or
United States trademark.  The foregoing indemnity obligation shall not
extend to any claims of infringement arising out of or related
to:  (a) modification of the Products by anyone other than
WaferGen; (b) combination of the
   la-950615  (rev
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Page 8of 15   WaferGen Confidential
  products
with any third party software or hardware where such combination is the cause of
such infringement; or (c) use of a version of Products other than the
then-current version if infringement would have been avoided by the use of the
then-current version.  Upon notice of an alleged infringement, or if
in WaferGen’s opinion such a claim is likely, WaferGen shall have the right, at
its sole option and expense, to:  (i) obtain for Distributor the
continuing right to distribute the Products; (ii) modify the Products or
substitute other non-infringing hardware or software with similar operating
capabilities; or (iii) if WaferGen determines that neither (i)
nor (ii) described above are reasonable, WaferGen may refund the fees paid
by Distributor for the infringing copies of the Products upon Distributor’s
return of such Products to WaferGen.  THIS SECTION‎14.2 SETS FORTH
WAFERGEN’S SOLE AND EXCLUSIVE LIABILITY AND DISTRIBUTOR’S SOLE AND EXCLUSIVE
REMEDIES FOR INFRINGEMENT BY THE PRODUCTS OF THIRD PARTY INTELLECTUAL PROPERTY
RIGHTS OF ANY KIND.
  14.3  Indemnity
Procedures.  Each party’s obligation to indemnify the other
party hereunder is subject to such other party:  (a) giving the
party from whom indemnification is sought (the “Indemnifying Party”) prompt
written notice of any such claim; (b) giving the Indemnifying Party sole
control over the defense and settlement of any such claim; (c) providing
full cooperation for the defense of any such claim, at the Indemnifying Party’s
expense; and (d) not entering into any settlement or compromise of any such
claim without the Indemnifying Party’s prior written approval.
  15.  Term
and Termination
  15.1  Term.  The term of
this Agreement shall commence as of the Effective Date and continue for one (1)
year thereafter.  Subsequently, this Agreement shall automatically
renew for successive one (1) year renewal terms, unless, at least thirty (30)
days prior to the beginning of any renewal term, either party gives the other
party written notice of its intent not to renew this Agreement.
  15.2  Termination.
  (a)  Either
party may terminate this Agreement upon thirty (30) days written notice of a
material breach of this Agreement by the other party, if such breach (including,
without limitation, a failure to pay WaferGen any amount due under this
Agreement or a failure to provide End Users adequate support for the Products)
is not cured within such thirty (30) day period.
  (b)  Notwithstanding
the above, WaferGen may terminate this Agreement immediately, upon written
notice, for Distributor’s breach of Sections‎2.3,‎4,‎7or‎8.
  (c)  Either
party may terminate this Agreement immediately upon written notice if the other
party becomes insolvent or fails to pay its obligations as they arise, files for
bankruptcy, or if a proceeding by or against the other party under any law
providing relief to the other party as debtor is commenced and is not dismissed
within sixty (60) days after commencement.
  15.3  Effect of
Termination.  Upon any termination or expiration of this
Agreement:
  (a)  The
rights and licenses granted in Section‎2 shall
immediately cease.  Distributor shall immediately cease using the
Trademarks and discontinue all representations that it is a distributor of the
Products.  WaferGen shall be entitled to:  (i) reject
all or part of any purchase orders received from Distributor after notice but
prior to the effective date of termination; and/or (ii) require
Distributor’s performance of any outstanding orders notwithstanding the fact
that delivery dates for such orders may extend beyond the effective date of
termination.  Notwithstanding any credit terms made available to
Distributor prior to that time, any Products shipped during said period shall be
paid for in full by certified or cashier’s check prior to shipment.
  (b)  Distributor
shall submit to WaferGen within ten (10) days after the effective date of
termination or expiration an inventory summary of the number of the respective
Products owned by Distributor as of the effective date of termination or
expiration.  WaferGen may, at its option, repurchase any or all of
such Products from Distributor upon written notice of its intention to do so
within a reasonable period after receiving the inventory summary, at prices to
be agreed upon between the parties, but in no event greater than the respective
prices paid by Distributor for such Products.  After WaferGen’s
receipt of such Products from Distributor, WaferGen shall issue an appropriate
credit to Distributor’s account and refund any amount greater than the
outstanding balance due WaferGen.
  (c)  The
payment date of all monies due WaferGen shall automatically be accelerated so
that they shall become due and payable on the effective date of termination,
even if longer terms had been provided previously.
   la-950615  (rev
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 Exclusive Distribution Agreement(Rev 05/08)
                                                           
Page 9of 15   WaferGen Confidential
  
  (d)  If
WaferGen chooses not to exercise its rights to repurchase Distributor’s
inventory, Distributor shall have sixty (60) days from the effective date of
termination to distribute its inventory.  Following such period,
Distributor shall return to WaferGen or destroy, as directed by WaferGen, all
Products remaining in Distributor’s inventory and shall promptly certify the
same in writing to WaferGen.  Within ten (10) days after the effective
date of termination, Distributor shall return or destroy all copies of the
Confidential Information.  At the request of WaferGen, the president
or the equivalent officer of Distributor shall certify in writing that
Distributor has complied with its obligations hereunder.
  (e)  Termination
of this Agreement by either party shall not act as a waiver of any breach of
this Agreement and shall not act as a release of either party from any liability
for breach of such party’s obligations under this Agreement.  Neither
party shall be liable to the other for damages of any kind solely as a result of
terminating this Agreement in accordance with its terms.  Either
party’s termination of this Agreement shall be without prejudice to any other
right or remedy that it may have at law or in equity, and shall not relieve
either party of breaches occurring prior to the effective date of such
termination.  Neither WaferGen nor Distributor shall be liable to the
other, because of such expiration or termination, for compensation,
reimbursement or damages:  (i) for the loss of prospective
profits, anticipated sales or goodwill; (ii) on account of any
expenditures, investments or commitments made by either party; or (iii) for
any other reason whatsoever based upon the result of such expiration or
termination.
  (f)  Sections‎4,‎7,‎8,‎10.2,‎10.3,‎10.5,‎11.4,‎12,‎13,‎14,‎15.3and‎16 shall
survive any termination or expiration of this Agreement.
  16.  Miscellaneous
Terms
  16.1  Relationship of the
Parties.  This Agreement shall not be construed as creating an
agency, partnership, joint venture or any other form of association, for tax
purposes or otherwise, between the parties, and the parties shall at all times
be and remain independent contractors.  Except as expressly agreed by
the parties in writing, neither party shall have any right or authority, express
or implied, to assume or create any obligation of any kind, or to make any
representation or warranty, on behalf of the other party or to bind the other
party in any respect whatsoever.
  16.2  Import/Export.  Distributor
shall comply with all applicable foreign and domestic laws and regulations
relating to the importation or exportation of the Products and to this Agreement
(“Export
Laws”).  Distributor shall not knowingly import or export or
cause to be imported or exported, directly or indirectly, any technology
licensed hereunder to any country for which any governmental authority requires
a license or other government approval at the time of such import or export,
without first obtaining the required license or approval.  Without
limiting the generality of the foregoing, Distributor shall not, and shall
require its representatives not to, export, direct or transfer any Products, or
any direct product thereof, to any destination, person or entity restricted or
prohibited by the Export Laws.  Any and all obligations of WaferGen to
provide software, technical information, technical assistance, media in which
any of the foregoing is contained, or training or related technical data to
Distributor or an End User shall be subject in all respects to the Export
Laws.
  16.3  Governing Law, Jurisdiction, and
Venue.  This Agreement shall be governed by and construed in
accordance with the laws of the State of California, U.S.A., without reference
to its conflicts of law provisions.  Any dispute regarding this
Agreement shall be subject to the exclusive jurisdiction of the state and
federal courts located in San Francisco County, California, U.S.A., and the
parties hereby irrevocably agree to submit to the personal and exclusive
jurisdiction and venue of such courts.  This Agreement shall not be
governed by the United Nations Convention on Contracts for the International
Sale of Goods, the application of which is hereby expressly
excluded.
  16.4  Force
Majeure.  Neither party shall be liable under this Agreement
because of any failure or delay in the performance of its obligations (except
for payment of money) on account of strikes, shortages, riots, fire, flood,
storm, earthquake, acts of God, hostilities or any other cause beyond its
reasonable control.
  16.5  Notices.  Any
notice, request, demand or other communication required or permitted hereunder
shall be in writing, shall reference this Agreement and shall be deemed to be
properly given:  (a) when delivered personally; (b) one (1)
business day after the date of transmission when sent by facsimile, with written
confirmation of receipt by the sending facsimile machine; (c) five (5)
business days after having been sent by registered or certified
mail,
   la-950615  (rev
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Page 10of 15   WaferGen Confidential
  return
receipt requested, postage prepaid; or (d) two (2) business days after
deposit with a private industry express overnight courier, with written
confirmation of receipt.  All notices shall be sent to the party and
address set forth after the signature of each party below (or to such other
address or person as may be designated by a party by giving written notice to
the other party pursuant to this Section).
  16.6  Assignment.  Distributor
shall not assign, transfer, delegate or otherwise dispose of this Agreement or
any right or obligation hereunder (whether by express transfer, operation of law
or otherwise) without the prior written consent of WaferGen.  WaferGen
shall be entitled to assign, transfer, delegate or otherwise dispose of, whether
voluntarily or involuntarily, by operation of law or otherwise, this Agreement
and any of its rights or obligations under this Agreement.  Any
attempted or purported assignment or other transfer not complying with the
foregoing shall be null and void.  Subject to the foregoing, this
Agreement shall inure to the benefit of and bind the successors and assigns of
the parties.
  16.7  Injunctive
Relief.  Distributor acknowledges that the breach of any
provision of Sections‎2.3,‎4,‎7or‎8 shall
cause irreparable injury to WaferGen, and agrees that WaferGen shall have the
right to seek and obtain (notwithstanding the provisions in Section‎16.3) from any
court of competent jurisdiction temporary, preliminary and permanent injunctive
relief, without the necessity of proving actual damages or posting a bond, to
prevent any such breach.  In the event WaferGen is required to file a
lawsuit or court action against Distributor to prevent such breach, Distributor
agrees to pay WaferGen’s reasonable attorney fees, expenses and court
costs.
  16.8  Counterparts.  This
Agreement may be executed in one or more counterparts, all of which together
shall constitute a single agreement.
  16.9  Headings.  The
various section headings used herein are inserted for convenience of reference
only and shall not affect the meaning or interpretation of this Agreement or any
section thereof.
  16.10  Severability.  If
any term, provision, covenant or condition of this Agreement is held by a court
or arbitral panel of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the provisions hereof shall remain in full force
and effect and shall in no way be affected, impaired or
invalidated.
  16.11  Construction.  This
Agreement shall be deemed to have been drafted by all parties and, in the event
of a dispute, no party hereto shall be entitled to claim that any provision
should be construed against any other party by reason of the fact that it was
drafted by one particular party.
  16.12  Entire
Agreement.  This Agreement and the Exhibits hereto contain the
entire understanding of the parties with respect to the subject matter of this
Agreement and merges and supersedes all prior and contemporaneous agreements and
understandings between the parties, whether oral or written, with respect to the
subject matter of this Agreement.  Any waiver, modification or
amendment of any provision of this Agreement shall be effective only if in
writing and signed by the authorized representatives of both
parties.
  
  In
Witness Whereof,
the parties hereto have executed this Exclusive Distribution Agreement as of the
Effective Date.
  
 WaferGen
              DistributorBy:
              By:Name:
              Name:Title:
              Title:Address for Notices:
                
                Address:                      46531
      Fremont Blvd.
                Fremont,
      CA  94538
                U.S.A
                
                Attention:VP
      of Sales
                Telephone:+11
      510-651-4450 x 268
                Fax:                      +11
      510-651-4599
              Address for Notices:
                
                Address:
                
                Attention:
                Telephone:
                Fax:
 
 
 
 
   la-950615  (rev
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 Exclusive Distribution Agreement(Rev 05/08)
                                                           
Page 11of 15   WaferGen Confidential
   Exhibit A
  Territory,
Products and Pricing, Purchasing Milestones, Demonstration Units
  
  I.           Territory:
  
  II.           Products
and Pricing:
 
 2008
Pricing Schedule for SmartSlide Micro-incubation Systems
 
 SmartSlide
      Micro-incubation SystemPart
      #
              Description
              List
      Price
                (USD
      $)
              Distributor
      Price
                (USD
      $)WFSS50
              SmartSlide
      50 Micro-incubation System
              -
              -WFSS100
              SmartSlide
      100 Micro-incubation System w/ Integrated Fluidics
              -
              -WFSS150
              SmartSlide
      150 Micro-incubation System w/ Integrated Multi-Fluidics
              -
              -WFSS200
              SmartSlide
      200 Micro-incubation System w/ Perfusion
              -
              -SmarSlide-6
      Micro-incubatorQuantity
              Part#
              Description
                SmartSlide-6
      Micro-incubator.  Sterile, disposable, SBS standard multiwell
      plate w/ heated thin bottom glass (175mm) and heated glass
    lid
              List
      Price
                (USD
      $)
              Distributor
      Price
                (USD
      $)1-50
      *
              WFSS6MI
              
              -
              -51-75
              WFSS6MI
              
              -
              -76
      or more
              WFSS6MI
              
              -
              -
 
 *
Demonstration units and the initial purchase units shall be
included.
 
   la-950615  (rev
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 Exclusive Distribution Agreement(Rev 05/08)
                                                           
Page 12of 15   WaferGen Confidential
  III.           Purchasing
Milestones
  Time
      Period
              MilestoneJune
      1, 2008 – December 31, 2008
              $___________
      ** of purchase orders for Products submitted and accepted (not including
      demonstration units) for Products to be delivered no later than third
      quarter 2008.January
      1, 2009 – May 30, 2009
              $___________
      ** of purchase orders submitted and accepted (not including demonstration
      units) for Products to be delivered no later than first quarter of
      2009.____________
      ** Total
 ** Figure
refers to Products order and Distributor Price (not List Price) paid for such
Products.
  
  
  IV.           Demonstration
Units
  At all
times during the Term of this Agreement, Distributor will maintain at least one
unit of each of the following two (2) Products: (i) WFSS50, and (ii) WFSS150, as
demonstration units of the Products.
  Distributor,
at its option, may maintain one unit of each of the following two (2) Products:
(a) WFSS100, and (b) WFSS200, as demonstration units of the
Products.
  During
each six (6) month period following the Effective Date, Distributor may purchase
one demonstration unit of each of the foregoing Products at a special discounted
price of fifty percent (50%) off the Suggested Retail Price.  Any
additional demonstration units of the Products purchased will purchased at the
Distributor Price applicable to such Products.
  
  V.           Initial
Purchase
  The
initial purchase of Products by Distributor includes the following: (a) the
demonstration units of the Products described in Section IV above, and (b) ten
units of the WFSS6MI Product.
   la-950615  (rev
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Page 13of 15   WaferGen Confidential
   Exhibit B
   
   Trademarks
  
  WaferGen
BiosystemsTM
  SmartSlide
50 Micro-incubation SystemTM
  SmartSlide
100 Micro-incubation System w/ Integrated FluidicsTM
  SmartSlide
150 Micro-incubation System w/ Integrated Multi-FluidicsTM
  SmartSlide
200 Micro-incubation System w/ PerfusionTM
  SmartSlide-6
Micro-incubatorTM
   la-950615  (rev
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 Exclusive Distribution Agreement(Rev 05/08)
                                                           
Page 14of 15   WaferGen Confidential
   Exhibit C
   Maintenance
and Support Services
  
  I.           Level One
Support
  A.
              Support by
      Distributor.  Distributor shall, at its own expense,
      provide all front-end customer support and training relating to the use of
      the Product by End Users (“Level One Support”) for
      any and all units of the Product marketed and distributed by
      Distributor.  Level One Support shall include, at a minimum,
      technical support for the installation, use and operation of the Products,
      by telephone, fax and e-mail during normal business
  hours.
  B.
              Support
      Personnel.  Distributor shall, at its expense, retain a
      minimum of one (1) full-time employee who
      shall:  (i) provide Level One Support to End Users; and
      (ii) act as Distributor’s liaison for all technical communications
      with WaferGen.
  
  II.           Level Two
Support
  A.
              Support by
      WaferGen.  WaferGen shall provide to Distributor back-end
      academic and theory support, technical information,  cooperation
      and assistance as may be reasonably necessary for Distributor to provide
      Level One Support to End Users (“Level Two Support”),
      including, without limitation, reasonable telephone, fax and e-mail
      support during WaferGen’s normal business
hours.
  B.
              Assistance of
      Distributor.  Distributor agrees to provide WaferGen with
      all information and materials requested by WaferGen for use in
      replicating, diagnosing and correcting an error or other problem with the
      Products reported by WaferGen to the extent such information and materials
      are reasonably available to
WaferGen.
  C.
              Exclusions.  Level
      Two Support shall exclude maintenance or service for the
      following:
  (i)
              computer
      hardware or equipment;
  (ii)
              software
      developed or provided to Distributor or End User by any party other than
      WaferGen and used in connection with the
  Products;
  (iii)
              restoration
      of lost data;
  (iv)
              any
      Software that has been customized or modified by any party other than
      WaferGen;
  (v)
              integration,
      installation or configuration of the Software or any software that
      interacts therewith, including operating systems, data communications
      products and databases;
  (vi)
              problems
      or errors caused by the negligence of Distributor or any third
      party;
  (vii)
              Software
      installed, operated, or maintained other than in conformance with the
      Agreement, the End User Agreement, Documentation or any WaferGen
      instructions.
  In the
event that WaferGen determines that a failure of the Products, or any part
thereof, to operate substantially in accordance with the Documentation is caused
directly or indirectly by misuse of the Products, or is directly caused by
modification or alteration of the Products by any party other than WaferGen, or
from any cause other than a defect in the Software, WaferGen’s services in
making such determination and in remedying any problem shall be deemed to be
consulting services and shall be billed to Distributor in accordance with
WaferGen’s then-current time-and-material fees.
  Page 15 of 15 WaferGen
Confidential