Commercial Product Warranty

I.      INTELLECTUAL PROPERTY RIGHTS / USE RESTRICTIONS / LIMITED LICENSE.
A.    OWNERSHIP.  The cells made by Cellular Dynamics International, Inc. (“Products” or “Commercial Products”) are covered by pending patents and patents:  www.cellulardynamics.com/patents.  You (“Customer”) have a limited license to use the Products for internal research purposes for the sole benefit of the Customer, subject to the use restrictions and third party licenses included in these terms and conditions.  Customer acknowledges and agrees that the receipt or purchase of the Products by Customer shall not be construed as a transfer of any title or the grant of any rights in or to the intellectual property embodied in the Products owned or licensed by Cellular Dynamics.  In particular, no right or license to make, have made, offer to sell, or sell the Products, to modify or reproduce the Product or any part thereof, or to use the Products in combination with any other product(s) except product(s) provided or expressly licensed to Customer by Cellular Dynamics for such use is implied or conveyed by the sale or transfer of Products to Customer.

B.    USE RESTRICTIONS.  The Products are licensed for internal research purposes only, and may not be used for any other purpose.  The Products must be used in accordance with any applicable Cellular Dynamics’ Product User’s Guides to which Customer hereby agrees.  Customer shall not make, have made, offer to sell, or sell the Products.  Customer shall not use the Products (or any modifications Customer makes to the Products or any cells derived, developed or expanded from the Products) in (i) the manufacture of any products, or (ii) any services for a third party.  Customer may not transfer the Products (or any modifications Customer makes to the Products or any cells derived, developed or expanded from the Products) to any third party without Cellular Dynamics’ prior written consent.  Customer shall not reverse engineer the Products.  Customer shall not use the Products, components or modifications thereof, or any cells derived, developed or expanded therefrom, in humans, in clinical trials, for diagnostic purposes involving human subjects, or for any investigational or other therapeutic use.  Customer shall not use the Products directly or indirectly to derive or make any human gamete or gamete precursor cell.  Customer shall use the Products in accordance with all applicable laws and regulations and any applicable institutional review board approved protocol and/or privacy office approval.  Customer is not entitled to receive any data or information from Cellular Dynamics that directly identifies the donor of the biological materials from which any of the Products indirectly are derived or was made.  Customer shall not attempt in any way to determine the identity of the donor of the biological materials from which any of the Products indirectly are derived or was made.

C.    THIRD PARTY LICENSES.  If the Products purchased by or transferred to Customer are iCell DopaNeurons, then Customer must execute these terms and conditions and the Letter of Acknowledgement with Memorial Sloan-Kettering Cancer Center in the form provided to Customer by Cellular Dynamics (the “End‑User LOA”), in connection with such purchase; provided, however, that if:  (i) each of these terms and conditions and an End‑User LOA previously executed by Customer and delivered to Cellular Dynamics is in full force and effect; and (ii) Customer is purchasing or receiving the same DopaNeuron Product as that previously sold or transferred in connection with Customer’s previously executed End‑User LOA, then Customer will not be required to execute additional terms and conditions and End‑User LOA.  Customer hereby acknowledges and agrees that, and this provision constitutes notice from Cellular Dynamics to Customer that, its rights with respect to any subsequently purchased or received DopaNeurons as contemplated in clause (ii) of the preceding provision are subject to the End‑User LOA previously executed by Customer.

II.     LIMITED WARRANTY BY CELLULAR DYNAMICS FOR COMMERCIAL PRODUCTS.
A.      During the Warranty Period (as defined below) and subject to Section II.F., below, Cellular Dynamics warrants that its Commercial Products conform to the specifications contained in the Certificate of Analysis for the Commercial Product shipped to Customer.  Customer’s sole and exclusive remedy (and Cellular Dynamics’ sole and exclusive liability) with respect to any defective Commercial Products shall be replacement of the defective Commercial Products by Cellular Dynamics pursuant to this Section II.

B.      Cellular Dynamics will bear all reasonable shipping costs if the Commercial Products are replaced pursuant to this warranty.  For clarity, this warranty automatically shall be void, and any claims under it invalid, (i) if Customer’s use of the Commercial Products is other than solely in accordance with these terms or for a purpose or in a manner other than that for which the Commercial Products were designed; or (ii) if Customer fails to follow Cellular Dynamics’ User’s Guide for the use, storage, and handling of the Commercial Products however such failure is caused; or (iii) if Customer fails to comply with any of the provisions of Sections II. A, B or C above; or (iv) if there is any abuse, other misuse or neglect of the Commercial Products by Customer or to the extent of any damage or loss of the Commercial Products by events or occurrences beyond a person’s (e.g., Cellular Dynamics’) control including without limitation, accident, fire, vandalism and natural disasters (acts of God).  This warranty applies only to Customer and not to third parties.  This warranty is not assignable.

C.     TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CELLULAR DYNAMICS DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE COMMERCIAL PRODUCTS, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, AND CUSTOMER WAIVES ALL RIGHTS AND REMEDIES, WITH RESPECT TO ANY DEFECTIVE COMMERCIAL PRODUCTS OTHER THAN THE EXPRESS WARRANTY AND REMEDY THEREFOR STATED ABOVE IN THIS SECTION II.

D.     Within five (5) business days of thawing the Commercial Product but prior to the expiration date of the Commercial Product as listed on the Certificate of Analysis and/or Commercial Product’s label (the “Warranty Period”), Customer must notify Cellular Dynamics in writing of any nonconformity of the Commercial Products, describing the nonconformity in detail.  Customer’s failure to properly notify Cellular Dynamics in the Warranty Period voids the limited warranty described above in this Section II.

E.      If Customer believes Customer has a warranty claim, Customer should call Cellular Dynamics’ Technical Support line at (608) 310-5100 ext. 5 or email support@cellulardynamics.com to request a replacement Commercial Product based on a breach of the above limited warranty.  Any action by Customer for Cellular Dynamics’ breach of this limited warranty, for which Customer has given timely and proper notice of the breach during the Warranty Period and otherwise in accordance with this Section II, must be commenced by Customer within 18 months following the date of such breach.

F.      Cellular Dynamics makes no warranty of any kind or nature, neither express nor implied, for any product sold together with, or as a part of, the Commercial Products (e.g., an accessory accompanying a Commercial Product or a discrete component part of a Commercial Product that is a kit) that is not manufactured by Cellular Dynamics. Any such accessory to or component part of the Commercial Products shall have the warranty, if any, that is offered and granted (and, for clarity, extended by its terms to Customer) by the manufacturer of such other accessory or component part.

G.    Customer acknowledges and agrees that Cellular Dynamics may fill Customer’s order with any number of units of Commercial Products.  Such units may be more units than Customer ordered.  Customer will not be charged extra for any adjustments made by Cellular Dynamics.  The number of cells in a unit is determined by the Commercial Product’s Certificate of Analysis. The number of cells that are contained in a unit accounts for both viability and plating efficiency percentages.  Because this may vary from lot to lot, Cellular Dynamics reserves the right to fill the order with that number of units which is sufficient to fill Customer’s order and such adjustments shall not constitute a breach of the warranty herein.

III.    FURTHER LIABILITY LIMITATION.
TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, CELLULAR DYNAMICS SHALL NOT HAVE ANY LIABILITY FOR INCIDENTAL, COMPENSATORY, PUNITIVE, CONSEQUENTIAL, INDIRECT, SPECIAL OR OTHER SIMILAR DAMAGES, HOWEVER CAUSED AND REGARDLESS OF FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF CELLULAR DYNAMICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING ANY OTHER TERM OR IMPLICATION TO THE CONTRARY, UNDER NO CIRCUMSTANCES SHALL CELLULAR DYNAMICS’ LIABILITY TO CUSTOMER EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE PRODUCTS TO CELLULAR DYNAMICS.