Terms of Lease/Sale: The purchase or lease of any products or equipment (hereafter “Products”) sold or leased by Cytori shall be subject to and expressly limited by the terms and conditions contained herein. No changes to, waiver of, or addition to any of these terms and conditions shall be effective unless agreed to in writing and signed by Cytori. Purchaser/Lessee (hereafter “Purchaser”) acknowledges and agrees that these terms and conditions supersede the terms and conditions of any purchase order or other documentation used by Purchaser and, except for delivery and billing addresses, and quantities prices and items ordered, any conflicting or additional terms are void and have no effect, but that Purchaser may place orders by use of purchase orders and other documentation for its convenience purposes only. Notwithstanding the foregoing, Cytori reserves the right at any time to amend these terms and conditions, and Purchaser shall be deemed to accept such amended terms and conditions by ordering products herein offered after the date of such amendment. Additional special terms and conditions of Cytori may apply to certain products.

Prices: All pricing quotes must be documented in writing and signed by Cytori to be valid. Prices quoted, unless otherwise stated, are specific to the referenced quantities. All prices are firm for 30 days from the date quoted. Cytori reserves the right to change the prices and specifications of its products at any time without notice. Products purchased from distributors will be at the prices set by those distributors and subject to the terms and conditions of sale of the distributor.

Tax Information: Any tax, duty, custom or other fee of any nature imposed upon the products, their sale, transportation, delivery, use or consumption shall be paid by Purchaser in addition to the price quoted or invoiced. If Cytori is required to prepay any such tax or fee, Purchaser will reimburse Cytori.

Payment: All payments by customer shall be fully due and payable prior to Cytori’s shipment of the order to the customer, unless otherwise negotiated between customer and Cytori. Purchaser’s obligation to pay outstanding invoices and all other amounts is absolute and unconditional and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever. Balances remaining unpaid at due date are subject to a interest charge of 1.5% per month or the highest rate permitted by law, whichever is lower, until paid. Any discounts, rebates, administrative fees, credits, or other fees due or owed to Purchaser will be applied against delinquent balances before payment or reimbursement is made. Any disputed amounts should be reported immediately and remitted with the undisputed amount by the payment due date. If Cytori agrees with the billing dispute, Cytori will credit Purchaser the amount of the agreed-upon billing dispute. All billing disputes must be made within forty-five (45) days of the applicable invoice date, or will be deemed to be waived. Cytori reserves the right in its sole discretion to require prepayment from any Purchaser at any time and may refuse to sell and/or withhold further shipment until all overdue balances are made current. Purchaser shall be liable for, and shall reimburse Cytori for all costs and expenses it may incur in connection with collection of any amounts owed to Cytori or enforcement of its rights, including without limitation, reasonable attorneys’ fees and expenses, court costs, and cost of collection agencies.

Shipping: Unless otherwise specified, freight charges will be prepaid when orders are shipped via a transportation mode and carrier selected by Cytori. Unless otherwise stated in an agreement, shipment of Products will be FCA (Incoterms 2010) / FOB Cytori’s facility at San Diego, CA. When expedited delivery, specialized service, or alternate transportation modes are requested, or if requests are inconsistent with efficient distribution practices, an additional charge to cover the premium expense will be added to the invoice. Inside deliveries or multiple deliveries are subject to additional charges based on current common carrier rates or hourly rates.

RESTRICTIONS ON USE: FOR ALL PRODUCTS PURCHASER AGREES THAT PRODUCT WILL BE USED ONLY IN A MANNER CONSISTENT WITH THE PRODUCTS’ PUBLISHED INSTRUCTIONS FOR USE.

CELUTION 800/CRS AND 800/IV SYSTEM RESTRICTIONS ON USE: PURCHASER AGREES THAT PRODUCT WILL BE USED ONLY FOR DIGESTION OF ADIPOSE TISSUE IN ORDER TO FURTHER EXTRACT, WASH AND CONCENTRATE ADIPOSE-DERIVED REGENERATIVE CELLS INTENDED FOR AUTOLOGOUS RE-IMPLANTATION (“CELUTION CRS OR IV AUTHORIZED USES”). PURCHASER UNDERSTANDS AND AGREES THAT THE PRODUCTS HAVE BEEN SPECIFICALLY DESIGNED AND/OR CALIBRATED FOR THE AUTHORIZED USES FOR WHICH THEY ARE INTENDED, AND THAT ANY USE OF THESE PRODUCTS OUTSIDE OF THE CELUTION CRS OR IV AUTHORIZED USES COULD BE DANGEROUS. THIS EQUIPMENT MAY ALSO NOT BE USED FOR ANY FORM OF TREATMENT TO RESTORE HAIR LOSS OR TO ENHANCE HAIR GROWTH IN THE HUMAN BODY.

CELUTION 800/CRS SYSTEM: PURCHASER UNDERSTANDS THIS EQUIPMENT IS NOT INTENDED FOR, AND MAY NOT BE USED FOR ANY FORM OF INTRAVASCULAR USE, INTRAVEINOUS USE, OR OTHER USES DESIGNED TO INTRODUCE CELLS (OR ANY FORM OF THE CELUTION DEVICE OUTPUT) DIRECTLY INTO THE CIRCULATORY SYSTEM.

Purchaser Representation: Purchaser represents it has examined the products and that they are acceptable for its intended use.

Resale Prohibited: Purchaser shall purchase the products for its own use only, and shall not resell the products to any other party.

Claims: The Purchaser shall make no false or misleading representations to other persons with regard to the Products or Cytori and shall not make any representations with respect to the specifications, features or capabilities of the Products which are not entirely consistent with those described in literature distributed by Cytori.

Compliance with Laws/Regulatory: Purchaser will comply with all applicable laws and regulations in its use of the Products. Regulatory approval for use and/or Importation into Purchasers country is the responsibility of the Purchaser.

Title, Acceptance, Risk of Loss and Returns: Title to Products sold to Purchaser and all risk of loss shall pass from Cytori to Purchaser at the time and place of Cytori’s delivery of Products to carrier, FCA (Incoterms 2000) Cytori’s facility at San Diego, CA, or as otherwise agreed by the parties in writing. Notwithstanding that Cytori may retain rights of possession or repossession to ensure collection of the purchase price thereof. Products are deemed accepted upon shipment. Title to Products leased to Purchaser remains with Cytori, provided that and all risk of loss shall be Purchasers responsibility upon Cytori’s delivery to Purchaser, until the leased Products have been returned to Cytori. Products may be returned only as specified pursuant to this agreement.

Software License: With respect to the software products incorporated in or forming a part of the Products hereunder, Cytori and Purchaser intend and agree that such software products are being licensed and not sold, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “Purchaser” or similar or derivative words are understood and agreed to mean “licensee” with respect to the software component. Notwithstanding anything to the contrary contained herein, Cytori or its licensor, as the case may be, retains all rights and interest in software products provided hereunder. Cytori hereby grants to Purchaser a royalty-free, non-exclusive license to use the software provided hereunder solely for end-users business purposes in the hardware products provided hereunder and to use the related documentation solely for CRS Uses of the Products. This license terminates when Purchaser’s lawful possession of the hardware products provided hereunder ceases, unless earlier terminated as provided herein. Purchaser agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation provided hereunder. Purchaser may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without Cytori’s prior written consent. Cytori will be entitled to terminate this license if Purchaser fails to comply with any term or condition herein. Purchaser agrees, upon termination of this license, immediately to return to Cytori all software products and related documentation provided hereunder and all copies and portions thereof. Certain software products provided by Cytori may be owned by one or more third parties and licensed to Cytori. Accordingly, Cytori and Purchaser agree such third parties retain ownership of and title to such software products.

Limitation of Liability: EXCEPT AS EXPRESSLY SO WARRANTED BELOW, CYTORI HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY AND IMPLIED, APPLICABLE TO THE PRODUCTS INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, DESIGN, AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE WRITTEN LIMITED WARRANTY, IF ANY, APPLICABLE TO ANY PARTICULAR PRODUCT SHALL STATE THE FULL EXTENT OF CYTORI’S LIABILITY, WHETHER DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL, RESULTING FROM ANY BREACH OF SUCH WARRANTY. CYTORI FURTHER DISCLAIMS ALL EXPRESS, STATUTORY AND IMPLIED WARRANTIES APPLICABLE TO THE PRODUCTS, WHICH ARE NOT MANUFACTURED BY CYTORI, OR BY A LICENSEE OR SUBLICENSEE OF CYTORI. THE ONLY WARRANTIES APPLICABLE TO PRODUCTS NOT MANUFACTURED BY CYTORI OR BY A LICENSEE OR SUBLICENSEE THEREOF SHALL BE THE INCLUDED WARRANTIES, IF ANY, OF THE MANUFACTURERS OF THOSE ITEMS. Cytori shall not in any event be liable to Purchaser for any indirect, incidental, special, punitive or consequential damages (including any damage for lost profits), or otherwise arising out of or in connection with furnishing of products, parts or service hereunder, or the performance, use of, or inability to use any products, parts or service, or otherwise, whether based in contract, warranty, tort, including without limitation, negligence, or any other legal or equitable theory. Cytori’s total liability for any claim or action shall not exceed the purchase price of the products out of which such claim or action arose.

Acknowledgment of Ownership: Purchaser acknowledges that (a) Cytori owns the Cytori Marks and all goodwill associated with or symbolized by Cytori Marks, (b) Purchaser has no ownership right in or to any Cytori Marks, and (c) Purchaser shall acquire no ownership interest in or to any of Cytori Marks. Purchaser shall not use any Cytori Marks in any manner as a part of its business, corporate or trade name or otherwise. Purchaser may not change, adulterate, obscure, remove or deface trademarks, tradenames or labels appearing on any Product of Cytori.

Intellectual Property Rights: In all cases, all intellectual property rights in and to, and all technology relating to, the Products supplied to Purchaser, their design and all improvements thereto or thereof, whether or not such Product, design or improvement is made pursuant to Purchaser’s specifications or at Purchaser’s expense, shall be and remain the exclusive property of Cytori. Any knowledge or information that Purchaser may disclose to Cytori shall not be deemed to be confidential or proprietary information, and shall be acquired by Cytori free from any restriction. Purchaser agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the Products and related documentation provided hereunder. Purchaser may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the Products provided hereunder without Cytori’s prior written consent.

Miscellaneous: Any required notices shall be given in writing, at the address set forth on the Purchase Order or to such other address as either party may substitute by written notice to the other and shall be deemed given upon personal delivery, overnight delivery or three days following deposit in the mail. Except as expressly provided herein, no changes or modifications to, or waiver of, any of these terms and conditions shall be valid or binding on either party unless in writing and signed by an authorized representative of each party. Cytori’s failure or delay to exercise or enforce any of its rights hereunder shall not constitute or be deemed to be a waiver of such rights or forfeiture of such rights, and Cytori may, at its option, from time to time, exercise any of its rights or remedies. These Terms bind Purchaser and its successors and permitted assigns. Cytori will use its reasonable efforts to fill orders, but Cytori shall not be liable for nonperformance or delays caused by a shortage of raw materials, manufacturing problems, delivery or labor problems, priorities, acts of regulatory agencies or judicial bodies, discontinuation of a product line, acts of God or third parties, infringement claims, or other causes beyond its reasonable control. Purchaser agrees that in such events Cytori may allocate products among all purchasers as it deems reasonable, without liability. Cytori reserves the right from time to time to substitute a product with a product that has the same function as such product, or to delete a product. These terms and any dispute or claim relating to or arising pursuant to these terms or the sale of products (“Claim”) shall be governed by and construed under laws of Switzerland, notwithstanding its law of conflicts of law. If any Claim or dispute arises under these terms and conditions, such Claim shall be settled by arbitration, in accordance with the terms of the Medical Equipment Lease. The decision of the arbitrator(s) shall be final and binding upon the parties and judgment upon the award may be entered in any court having jurisdiction thereof.

Recall: Cytori shall promptly deliver written notice or verbal, followed by written, notice of any recall of Product. Cytori shall replace, to the extent reasonably possible, any such recalled Products as soon as practicable with comparable Products not subject to such recall.

Notice: If any of the products are medical devices, Purchaser agrees to notify Cytori within ten (10) days of the occurrence of any serious illness or injury involving such devices, and within seventy-two hours of any death in connection with the use of the device. Purchaser shall maintain adequate tracking for the products to enable Cytori to meet the FDA requirements applicable to the tracking of medical devices.

LIMITED WARRANTY: Cytori warrants that the Products will operate substantially in conformance with Cytori’s published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for a period of one (1) year from the date of shipment to Purchaser (the “Warranty Period”). Cytori agrees during the Warranty Period, provided it is promptly notified in writing upon the discovery of any defect and further provided that all costs of returning the defective Products to Cytori are pre-paid by Purchaser, to repair or replace, at Cytori’s option, defective Products so as to cause the same to operate in substantial conformance with said specifications. Replacement parts may be new or refurbished, at the election of Cytori. All replaced parts shall become the property of Cytori. Shipment to Purchaser shall be paid for by Cytori during the Warranty Period. Lamps, fuses, bulbs and other expendable items are expressly excluded from this limited warranty. In no event shall Cytori have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Purchaser, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure, electrical power surges, or unauthorized relocation or installation, (vi) improper storage of the Products or (vii) use of the Products in combination with equipment or software not supplied by Cytori. If Cytori determines that Products for which Purchaser has requested warranty services are not covered by the warranty hereunder, Purchaser shall pay or reimburse Cytori for all costs of investigating and responding to such request at Cytori’s then prevailing time and materials rates. Cytori will provide repair services or replacement parts that are not covered by the warranty during the Warranty Period subject to Purchaser’s payment to Cytori at Cytori’s then prevailing time and materials rates for such repairs, according o the payment terms provided elsewhere herein. ANY DAMAGE CAUSED BY UNAUTHORIZED INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN CYTORI WITHOUT CYTORI’S PRIOR WRITTEN APPROVAL, OR DAMAGE CAUSED BY USE OF REPLACEMENT PARTS NOT SUPPLIED BY CYTORI, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO SUCH DAMAGE.

This Cytori Product purchase Agreement (“Agreement”) is made as of Cytori’s receipt date of the Purchaser’s Product order through Cytori’s online purchase system (“Effective Date”), by and between Cytori Therapeutics, Inc. located at 3020 Callan Road, San Diego, California 92121, USA, (“Cytori”) and the purchasing party of certain Cytori Products (as defined herein) (“Purchaser”).  Any capitalized terms used herein shall have the meaning provided in this Agreement.

The terms and conditions of this Agreement will apply to each business transaction between the parties for the sale of Cytori Products by Cytori to Purchaser.

Any different or additional terms in Purchaser’s purchase order or any other document, whether pre-printed or otherwise, are specifically excluded.

By ordering, Purchaser hereby agrees to the terms and conditions of this Agreement, including, without limitation, the Purchase Agreement Terms and Conditions attached hereto and all applicable attachments and exhibits thereto, including all applicable Product information available on http://www.celase.com, each of which is incorporated herein by reference. This Agreement may be executed in counterparts, each of which will be considered an original, but all of which together will constitute the same instrument.

Information exchanged between the parties is subject to the terms and conditions of the Cytori Privacy Policy in effect and posted on http://www.www.cytori.com.

Once agreed, any reproduction of this Agreement, or any attachment or exhibit hereto, made by reliable means (e.g., photocopy or facsimile) shall be deemed to be an original and all Products ordered under this Agreement will be subject to it.

Purchase Agreement Terms and Conditions

Terms of Sale and Purchase. Subject to and expressly limited by the terms and conditions of this Agreement (collectively, the “Terms”), Cytori agrees to sell to Purchaser and Purchaser agrees to purchase from Cytori, such quantities of the Cytori Celase^® GMP (the “Product(s)”) as Purchaser may order from time to time for Purchaser’s reasonable requirements. Cytori’s acceptance of any Product purchase order is hereby expressly made in reliance on Purchaser’s assent to all terms and conditions hereof.  Cytori reserves the right to accept or reject any purchase order or other document in whole or in part. Cytori reserves the right to alter, modify, or redesign its Products without any obligation to replace previous shipments to Purchaser.

This Agreement sets forth the entire understanding between the parties with respect to the purchase of Product, and supersedes all prior oral and written agreements between the parties related to such subject matter unless specifically identified and included in this Agreement.

Purchaser acknowledges and agrees that except for delivery, billing addresses, quantities, Product descriptions, prices and items ordered, terms in any other documents that are in variance with or contrary to this Agreement (e.g., purchase orders, invoices, or proposals) shall not be binding upon Cytori unless specifically agreed to in a writing and signed by Cytori’s authorized representative.

Cytori reserves the right to accept or reject any Product order in whole or in part. Cancellation or modification of orders are subject to Cytori’s prior written consent in each instance.

Notwithstanding the foregoing, Cytori reserves the right at any time to modify or amend this Agreement without notice, and such modification(s) will be effective upon posting on http://www.celase.com. Purchaser shall be deemed to accept such amended terms and conditions by ordering Products herein. Additional special terms and conditions of Cytori may apply to certain Product purchases.

Prices. Purchaser shall pay to Cytori for the Products purchased hereunder the amounts as set forth on www.celase.com. Such amounts exclude, and Purchaser shall pay, all shipping charges and all sales, use and other taxes, export and import fees, customs duties and similar charges applicable to the transactions contemplated by this Agreement. Cytori reserves the right to change Product prices at any time without notice.

If applicable, a bulk Product pricing quote must be documented in writing and signed by Cytori to be valid. Bulk prices quoted will remain firm for thirty (30) days and are specific to the referenced quantities, unless otherwise stated in writing.

Taxes. Any and all federal, state or local sales, use or excise tax, duty, custom or other fee of any nature imposed with respect to the Products, their sale, transportation, delivery, are the responsibility of the Purchaser and shall be paid in addition to the price quoted. If Cytori is required to prepay any such tax or fee, Purchaser will promptly reimburse Cytori. Purchaser is solely responsible for all penalties, interest, additional taxes or other charges that are demanded from, levied or assessed against Cytori as a result of any delay or failure by Purchaser to pay a tax, file a return or provide information required by law or this Agreement.  Following receipt of notice, Purchaser must immediately pay any such amounts and reimburse Cytori for any costs incurred by Cytori in connection with any demand, levy or assessment.

Mode of Shipping / Packaging. Cytori has the sole right to select the form of transportation. Unless otherwise specified, freight charges will be prepaid when orders are shipped via a transportation mode and carrier selected by Cytori. All Product shipments shall be fulfilled and made FCA (Incoterms 2010) / FOB from Cytori’s preferred shipping point or facility in Germany or San Diego, California, U.S.A.   Cytori shall charge the Purchaser for the actual shipping costs in an invoice.  Shipping charges are subject to change without notice. Any freight, expedited delivery, specialized handling or packaging, export sales, alternate transportation modes or custom service requests are the responsibility of Purchaser and will be added to Purchaser‘s invoice. Additional charges will be applied for lift gate service, inside delivery or set up. Cytori reserves the right to make partial shipments.  Certain Products may be subject to different or additional shipping terms.  Quoted ship dates are based on estimates at the time of quotation and Cytori will devote its commercially reasonable efforts to meeting such schedules but does not guarantee any quoted ship date or delivery date.  Cytori assumes no liability for any costs or damages resulting from late deliveries regardless of the cause.

Orders will generally be shipped within two (2) business days of Cytori’s order receipt and confirmation of complete payment.

RESTRICTIONS ON USE. FOR ALL CYTORI PRODUCTS, PURCHASER AGREES THAT PRODUCT WILL BE USED ONLY IN A MANNER CONSISTENT WITH THE PRODUCT’S PUBLISHED INSTRUCTIONS FOR USE.

Purchaser Representation. Purchaser represents the Products are acceptable for Purchaser’s intended use as Purchaser has examined the Products and has reviewed all applicable Product information, including but not limited to the Product specifications and Instructions for Use.  The individual Purchaser purchasing Product for a corporate entity hereby personally warrants his or her legal authority to bind that entity and its affiliates to this Agreement.

Resale Prohibited. Purchaser hereby certifies that it is purchasing the Products from Cytori for its own use only, and shall not resell or redistribute the Products to any other party.  A breach of this Section shall be deemed a material breach.

Claims. The Purchaser shall make no false or misleading representations or omissions with regard to the Products or Cytori and shall not make any representations regarding the Product inconsistent with Product information provided to Purchaser by Cytori.

Compliance with Laws. Purchaser shall comply with all applicable laws, rules and regulations, including, but not limited to, U.S. export control laws. Regulatory approval for use and/or importation into Purchaser’s country is the sole responsibility of the Purchaser.

Acceptance, Risk of Loss and Returns. Title to Products sold to Purchaser and all risk of loss shall pass from Cytori to Purchaser at the time and place of Cytori’s delivery of Product to carrier, FCA (Incoterms 2000) Cytori’s facility, located at San Diego, California, U.S.A or Germany, as applicable, or as otherwise agreed by the parties in writing.

Notwithstanding that Cytori may retain rights of possession or repossession to ensure collection of the purchase price thereof. Products are deemed accepted by Purchaser upon shipment. Products may be returned only as specified pursuant to this Agreement.

Limitation of Liability. EXCEPT AS EXPRESSLY SO WARRANTED BELOW, CYTORI HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY AND IMPLIED, APPLICABLE TO THE PRODUCTS INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, DESIGN, AND/OR FITNESS FOR A PARTICULAR PURPOSE. THE WRITTEN LIMITED WARRANTY, IF ANY, APPLICABLE TO ANY PARTICULAR PRODUCT SHALL STATE THE FULL EXTENT OF CYTORI’S LIABILITY, WHETHER DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL, RESULTING FROM ANY BREACH OF SUCH WARRANTY.

CYTORI FURTHER DISCLAIMS ALL EXPRESS, STATUTORY AND IMPLIED WARRANTIES APPLICABLE TO THE PRODUCTS, WHICH ARE NOT MANUFACTURED BY CYTORI, OR BY A LICENSEE OR SUBLICENSEE OF CYTORI.

THE ONLY WARRANTIES APPLICABLE TO PRODUCTS NOT MANUFACTURED BY CYTORI OR BY A LICENSEE OR SUBLICENSEE THEREOF SHALL BE THE INCLUDED WARRANTIES, IF ANY, OF THE MANUFACTURERS OF THOSE ITEMS.

TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY, IN NO EVENT WILL (A) EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT OR THE PRODUCTS PROVIDED HEREUNDER, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND (B) CYTORI’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS PROVIDED HEREUNDER  EXCEED THE AMOUNTS PAID BY PURCHASER TO CYTORI UNDER THIS AGREEMENT FOR THE SPECIFIC PRODUCT(S) GIVING RISE TO THE CLAIM.

Acknowledgment of Ownership. Purchaser acknowledges that (a) Cytori owns the Cytori trademarks, trade names and labels (collectively, the “Cytori Marks”) and all goodwill associated with or symbolized by Cytori Marks, (b) Purchaser has no ownership right in or to any Cytori Marks, and (c) Purchaser shall acquire no ownership interest in or to any of Cytori Marks. Purchaser shall not use any Cytori Marks in any manner as a part of its business, corporate or trade name or otherwise. Purchaser may not change, adulterate, obscure, remove or deface trademarks, trade names or labels appearing on any Product of Cytori.

Intellectual Property Rights. Purchaser acknowledges and agrees that in all cases, all intellectual property rights in and to, and all technology relating to, the Products supplied to Purchaser, their design and all improvements thereto or thereof, whether or not such Product, design or improvement is made pursuant to Purchaser’s specifications or at Purchaser’s expense, shall be and remain the exclusive property of Cytori. Any knowledge or information that Purchaser may disclose to Cytori shall not be deemed to be confidential or proprietary information, and shall be acquired by Cytori free from any restriction. Purchaser agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form or manner to third parties the Products and any related documentation provided hereunder. Purchaser may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the Products provided hereunder without Cytori’s prior written consent.

Notices.  All notices required or permitted by this Agreement shall be deemed to have been given and received only when (a) delivered in person, (b) delivered by a reputable overnight courier service, as evidenced by the courier’s delivery records, (c) transmitted by facsimile, provided that the sender receives an electronic answer-back code confirming transmission and also sends an original by any of the other means specified in this Section, or (d) delivered by certified mail, return receipt requested, as evidenced by the mail service’s delivery records.  All notices shall be addressed to the parties as specified on the applicable Product order.  All changes of address by either party shall be promptly notified to the other party as specified herein.  A copy of any notice sent to Cytori shall be sent to:  Cytori Therapeutics, Inc., 3020 Callan Road, San Diego, California 92121, USA, Attention:  General Counsel, Facsimile  +1.858.458.0994.

Substitution. Cytori reserves the right from time to time to substitute a Product with a Product that has the same function as such Product or to delete a Product.

Government Contracts. Unless specifically notified and agreed to in writing signed by Cytori, Cytori will not be bound by the terms of any government contract to which Purchaser may be a party.

Governing Law. This Agreement shall be governed by the laws of the State of California, U.S.A. without reference to any rule applying the law of another jurisdiction.  The parties expressly exclude, from this Agreement and any Product sold hereunder, the application of the United Nations Convention on Contracts for the International Sale of Goods.

Uniform Commercial Code. Article 2 of the California Uniform Commercial Code (“UCC“) is incorporated herein and is intended to supplement this Agreement and any interpretation of it.  In the event of a conflict between the UCC and any provision of this Agreement, the provisions contained in this Agreement will control the parties’ rights and obligations.

Arbitration. If the parties cannot resolve any dispute, controversy, or claim arising out of or relating to this Agreement or any Product (“Dispute”) after using good faith efforts to resolve the Dispute informally, the Dispute shall be settled by arbitration in accordance with the Arbitration Rules of the American Arbitration Association.  Such arbitration shall be conducted by a single arbitrator who shall have no authority to add to, modify, change or disregard any lawful terms of this Agreement.  The arbitration shall be held in San Diego County, California, and judgment upon the award rendered may be entered in any court having jurisdiction, and the parties hereby consent to the jurisdiction of the California courts for this purpose.

Time for Bringing Action. Any action of any kind, including but not limited to a Dispute, arising out of or in any way connected with this Agreement or a Cytori Product, other than collection of outstanding payment obligations, must be commenced within one (1) year upon which the cause of action accrued.

Recall. Cytori will promptly notify Purchaser of any Product recall and will use its best efforts to monitor the recall status of all Products. Cytori, at Cytori’s sole option, shall replace affected Product with unaffected Product or reimburse Purchaser its original costs in acquiring each affected Product or as covered under Warranty as soon as practicable.

Returned Goods Policy.  Cytori guarantees that it will accept for credit or exchange each Product returned in accordance with Cytori’s Return Goods Policy as follows:  Purchaser will have five (5) business days from the date of delivery to inspect the Products and to reject any or all Products which are defective or nonconforming. In no event will Cytori consider claims for damage or errors in shipment unless notice of such claims are transmitted to Cytori within five (5) business days after receipt of the allegedly damaged goods together with documentation substantiating the claim and unless made with the freight carrier in accordance with such carrier‘s policies and procedures. All return freight charges for Products that are deemed to be not defective or nonconforming are the responsibility of Purchaser. LIMITED WARRANTY. Cytori warrants to Purchaser that each Product conforms to its published Product specifications and be free from defects, when used according to the Instructions for Use supplied with the Product and available at www.celase.com by properly trained and personnel, until the expiration date of said Product (the “Warranty Period“). In accordance with the terms of this Agreement, Cytori shall, as its sole and exclusive obligation and Purchaser’s sole and exclusive remedy for any breach of this warranty during the Warranty Period, repair or replace the Product which gave rise to the breach or, at Cytori’s option, refund the amounts paid by Purchaser for the non-conforming Product provided that: (a) Cytori is promptly notified in writing upon the discovery of any defect, and (b) all defective Products are returned to Cytori pre-paid by Purchaser no later than forty-five (45) days from the date of defect discovery. In no event shall Cytori have any obligation to replace products, in whole or in part, as the result of (i) accident, disaster or event of force majeure, (ii) misuse, fault or negligence of or by Purchaser, (iii) use of the Products in a manner for which they were not designed, (iv) causes external to the Products such as, but not limited to, power failure, electrical power surges affecting the proper storage of the Products, or (v) improper storage of the Products. If Cytori determines that Products for which Purchaser are not covered by the warranty hereunder, Purchaser shall pay or reimburse Cytori for all costs of investigating and responding to such request at Cytori’s then prevailing time and materials rates. ANY DAMAGE CAUSED BY UNAUTHORIZED ALTERATION TO OR OF, OR OTHER TAMPERING WITH, PRODUCT PERFORMED BY ANY PERSON OR ENTITY OTHER THAN CYTORI WITHOUT CYTORI ‘S PRIOR WRITTEN APPROVAL, CYTORI SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO SUCH DAMAGE. EXCEPT AS EXPRESSLY SET FORTH HEREIN, CYTORI  MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.

Force Majeure. Cytori will use commercially reasonable efforts to fill Product orders, but Cytori shall not be liable for any delays in making delivery where occasioned by strikes, differences with workers, or any causes beyond the control of Cytori, included but not limited to fires, floods, accidents, acts of God or third parties, infringement claims, actions of any governmental authority, shortages or problems of labor, energy, raw materials, manufacturing production, facilities, transportation, the discontinuation of a Product line, or any other causes beyond its reasonable control. Purchaser agrees that in such events Cytori may allocate Products among all purchasers as it deems reasonable, without liability.

Assignment.  Neither party may assign its rights or delegate its obligations under this Agreement without the prior written consent of the other party.  Notwithstanding the foregoing, Cytori may assign its rights and obligations under this Agreement to a parent, affiliate, or subsidiary, or to a successor of Cytori’s business which includes the Products, whether by way of merger, sale of all or substantially all of its assets or otherwise.  Any attempted assignment of this Agreement not in accordance with this Section shall be null and void.  This Agreement shall be binding upon, and inure to the benefit of, the parties and their respective successors and permitted assigns.

Headings.  Section headings are for reference purposes only and in no way define, limit, construe or describe the scope of extent of such Section.

Severability.  If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will continue in full force and effect without being impaired or invalidated in any way.  The parties agree to replace any invalid provision with a valid provision that most closely approximates the intent and economic effect of the invalid provision.

Waiver. Cytori’s failure or delay to exercise or enforce any right hereunder shall not operate as a waiver thereof, nor shall a single or partial exercise of any such right preclude any other or further exercise thereof or the exercise of any other right.

A waiver on one occasion shall not constitute a wavier on any further occasion.  Cytori may, at its option, from time to time, exercise any of its rights or remedies.

Conflicts Minerals. Cytori shall not provide any tantalum, tin, tungsten or gold (the “minerals”) mined from Democratic Republic of the Congo, Angola, the Republic of the Congo, Uganda, Rwanda, Burundi, Tanzania, Zambia, South Sudan and the Central African Republic that contribute to armed conflict or human rights abuses. Upon request, Cytori will provide country of origin information for minerals, if any, used in the manufacture of the Product.

Entire Agreement.  This Agreement, including any specifically referenced exhibits hereto, contains the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter.  No party will be liable or bound to any other party in any manner by any representations, warranties or covenants relating to such subject matter except as specifically set forth in this Agreement.

Confidentiality.  The pricing terms of this Agreement, are the confidential information of Cytori and shall not be disclosed by Purchaser to any third party (excluding Purchaser’s employees, attorneys, accountants, and other professional advisors who have a “need to know”), except as may be required by law or government regulation.

1. PARTIES: Except as stated below, the administrator (“Administrator”) of this Support Plan Terms and Conditions Contract is Cytori Therapeutics, Inc. (“Cytori”), 3020 Callan Rd., San Diego, CA 92121, USA, Phone USA: +1 (858) 875-5245 or EU: +44.1244.360.426. The service performed under this Contract is provided through the Administrator or a servicer approved by the Administrator. “We,” “Us”, and “Our” mean collectively the Administrator. “You” and “Your” mean the owner of the covered product who paid for this Contract (“Purchaser”).
2. PRODUCT COVERAGE: A covered product (as referenced by serial number on the purchase order) will be restored to operate substantially in conformance with Cytori’s published specifications after it has failed during normal, proper, and intended usage by properly trained personnel.
   1. The Plan also covers product warranty, repairs, maintenance, technical support, and/or annual training for the Celution products. Services may include:
      1. Technical Support – unlimited remote technical support from certified Cytori technicians via phone or via the web – 24/7
      2. Annual onsite comprehensive visit for a scheduled preventative maintenance, which includes inspecting, verifying, and calibrating all Cytori components.
      3. Preventative Maintenance visit may also include additional or supplementary training if requested.

3. COVERAGE PERIOD: Your coverage begins on date of installation or date signed on Service Contract Purchase Order, whichever is later, and ends at the conclusion of your Plan term.
4. LOCATION OF SERVICE: On-Site Service –Service will be provided at the address on the Service Contract Purchase Order unless you have notified Cytori under Section 6.0. If We determine that your product must be repaired elsewhere, pick-up and return expenses are covered.
5. IF YOU NEED SERVICE: Call the telephone number displayed above to schedule service. Service will be available during regular working hours within 21 days of notification to Cytori.
6. CONTRACT LIMITATIONS:
   1. Indirect Damages – IN NO EVENT ARE WE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES RELATING DIRECTLY OR INDIRECTLY TO THIS CONTRACT.
   2. Limitation of Liability – To the extent permitted by applicable law, Our liability, if any, for any allegedly defective covered product or part shall be limited to repair or replacement of the product or part at Administrator’s option, and Our liability, if any, for damages relating to any defective covered product or part shall not exceed Your purchase price for the product or part in question. THIS CONTRACT IS YOUR SOLE EXPRESS PRODUCT SUPPORT PLAN WITH RESPECT TO THE COVERED PRODUCT(S). ALL IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCT(S) INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED.
   3. Renewals – We are not obligated to renew Your Contract.
   4. Non-Original MFR and Re-Manufactured Parts – While genuine factory parts will be used in most instances; the use of non-original MFR and re-manufactured parts is allowed under this Contract at Administrators sole option.
   5. Service Failure or Delay – Administrator is not responsible for any failure or delay in performing service due to acts of God, war, or other causes beyond its control.

7. CONSUMER’S PROMISES AND ASSURANCES: In order to keep this Contract in force during its term, You promise and assure (A) full cooperation with Administrator and authorized service technicians during diagnosis and repair of the covered product; (B) accessibility of the covered product; (C) a non-threatening and safe environment for service; (D) that You will provide normal upkeep and cleaning for the covered product; and (E) that You will provide written notice of any defect or deficiency in product within 45 days of discovery by You.
8. WHAT IS NOT COVERED: Your Contract does not cover, and Cytori is not obligated to make repairs, replacements or corrections required, in whole or in part, as the result of:
   1. Accident, disaster or event of force majeure;
   2. Misuse, fault or negligence of or by Purchaser;
   3. Use of the Products in a manner for which they were not designed;
   4. Causes external to the Products such as, but not limited to, power failure or electrical power surges;
   5. Improper storage of the Products or
      Use of the Products in combination with equipment or software not supplied by Cytori. If Cytori determines that Products for which Purchaser has requested product support services are not covered by the Product Support Plan contract hereunder, Purchaser shall pay or reimburse Cytori for all costs of investigating and responding to such request at Cytori’s then prevailing time and materials rates. Cytori will provide repair services or replacement parts that are not covered by the Product Support Plan contract during the Product Support Plan Period subject to Purchaser’s payment to Cytori at Cytori’s then prevailing time and materials rates for such repairs. Full payment shall be due within 30 days of invoice. Purchaser’s obligation to pay outstanding invoices and all other amounts is absolute and unconditional and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever. Balances remaining unpaid at due date are subject to an interest charge of 1.5% per month or the highest rate permitted by law, whichever is lower, until paid. Purchaser shall be liable for, and shall reimburse Cytori for all costs and expenses it may incur in connection with collection of any amounts owed to Cytori or enforcement of its rights, including without limitation, reasonable attorneys’ fees and expenses, court costs, and cost of collection agencies. ANY DAMAGE CAUSED BY UNAUTHORIZED INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR DAMAGE CAUSED BY USE OF REPLACEMENT PARTS NOT SUPPLIED BY CYTORI, SHALL IMMEDIATELY VOID AND CANCEL ALL CYTORI OBLIGATIONS HEREUNDER WITH RESPECT TO SUCH DAMAGES.
      1. Unauthorized repairs performed by third parties, inaccessible products, theft
      2. Damage or failures caused by conditions beyond Administrator’s control such as freezing, inadequate plumbing, wiring, power supply, power surge, rust, corrosion, infestation, negligence, abuse, misuse, acts of God, failure to follow manufacturer’s recommended maintenance, improper installation, ;
      3. Repair or replacement caused by damage that existed prior to the Plan purchase;
      4. Shipping damage to products resulting from inadequate packaging by You;
      5. Upgraded, retrofit, or unapproved components;

2. SPECIAL PROVISIONS: This Contract, including all provisions, limitations, definitions, and exclusions, the Product Support Plan, and any initial warranty offered with the Product constitute the entire Contract between the parties relating to the subject matter hereof.
3. ARBITRATION, MANDATORY ARBITRATION: Please read carefully. Any claim or dispute arising under the terms of this Contract or any Product Support Plan shall be resolved exclusively and finally by means of arbitration under the Rules of Arbitration of the International Chamber of Commerce (the “Rules”) by a single neutral arbitrator appointed by the ICC. The proceedings shall be conducted in the English language and Judgment on the award rendered by the arbitrator shall be binding upon the Parties and may be entered in any court having jurisdiction thereof. Procedure: To initiate Arbitration, a party must give written notice of their election to arbitrate. Notice can be given after a lawsuit has been filed (including in papers in the lawsuit). Upon Notice, the claim shall be resolved by Arbitration under this Section according to the procedural Rules the ICC. Governing Law: This Agreement shall be governed by and construed in accordance with the laws of the state of New York (USA), without application of its conflicts of laws provisions.Location:
   • For products located within the European Union (EU): The place of the arbitration and all hearings and meetings shall be Zug, Switzerland unless the Parties to the arbitration otherwise agree.
   • For products located within Asia Pacific (AP): The place of the arbitration and all hearings and meetings shall be Tokyo, Japan unless the Parties to the arbitration otherwise agree.
   • For products located within United States (USA): The place of the arbitration and all hearings and meetings shall be San Diego, California, United States unless the Parties to the arbitration otherwise agree.

Getting Information: At either Party’s request, the Arbitrator shall (1) consider a request for additional information from the other party beyond what is allowed by the applicable rules and (2) issue a written decision supported by findings of fact and conclusions of law

Terms of Sale: Purchase of any products sold by Cytori shall be subject to and expressly limited by the terms and conditions contained herein. No changes to, waiver of, or addition to any of these terms and conditions shall be effective unless agreed to in writing and signed by Cytori. Purchaser acknowledges and agrees that these terms and conditions supersede the terms and conditions of any purchase order or other documentation used by Purchaser and, except for delivery and billing addresses, and quantities prices and items ordered, any conflicting or additional terms are void and have no effect, but that Purchaser may place orders by use of purchase orders and other documentation for its convenience purposes only. Notwithstanding the foregoing, Cytori reserves the right at any time to amend these terms and conditions, and Purchaser shall be deemed to accept such amended terms and conditions by ordering products herein offered after the date of such amendment. Additional special terms and conditions of Cytori may be applicable with respect to certain products.

Prices: All pricing quotes must be documented in writing and signed by Cytori to be valid. Prices quoted, unless otherwise stated, are specific to the referenced quantities. All prices are firm for 30 days from the date quoted. Cytori reserves the right to change the prices and specifications of its products at any time without notice.

Products purchased from distributors will be at the prices set by those distributors and subject to the terms and conditions of sale of the distributor.

Tax Information: Any tax, duty, custom or other fee of any nature imposed upon the products, their sale, transportation, delivery, use or consumption shall be paid by Purchaser in addition to the price quoted or invoiced. If Cytori is required to prepay any such tax or fee, Purchaser will reimburse Cytori.

Payment: Payment terms are payment in full prior to delivery of Products. If Cytori later determines to grant credit terms to the Customer, then such terms shall be net 30 days from date of invoice, unless otherwise specified in the quoted Price. Purchaser’s obligation to pay outstanding invoices and all other amounts is absolute and unconditional and is not subject to any abatement, reduction, set-off, defense, counterclaim, interruption, deferment or recoupment for any reason whatsoever. Balances remaining unpaid at due date are subject to a interest charge of 1.5% per month or the highest rate permitted by law, whichever is lower, until paid. Any discounts, rebates, administrative fees, credits, or other fees due or owed to Purchaser will be applied against delinquent balances before payment or reimbursement is made. Any disputed amounts should be reported immediately and remitted with the undisputed amount by the payment due date. If Cytori agrees with the billing dispute, Cytori will credit Purchaser the amount of the agreed-upon billing dispute. All billing disputes must be made within forty-five (45) days of the applicable invoice date, or will be deemed to be waived. Cytori reserves the right in its sole discretion to require prepayment from any Purchaser at any time and may refuse to sell and/or withhold further shipment until all overdue balances are made current. Purchaser shall be liable for, and shall reimburse Cytori for all costs and expenses it may incur in connection with collection of any amounts owed to Cytori or enforcement of its rights, including without limitation, reasonable attorneys’ fees and expenses, court costs, and cost of collection agencies.

Shipping: Unless otherwise specified, freight charges will be prepaid when orders are shipped via a transportation mode and carrier selected by Cytori. Unless otherwise stated in an agreement, shipment of  Products will be EXW (Incoterms 2010) Cytori’s facility at San Diego, CA. When expedited delivery, specialized service, or alternate transportation modes are requested, or if requests are inconsistent with efficient distribution practices, an additional charge to cover the premium expense will be added to the invoice. Inside deliveries or multiple deliveries are subject to additional charges based on current common carrier rates or hourly rates.

RESTRICTIONS ON USE: PURCHASER AGREES THAT PRODUCT WILL BE USED ONLY AS LABORATORY EQUIPMENT TO EXTRACT, WASH, AND CONCENTRATE STROMAL STEM CELLS AND OTHER ASSOCIATED PROGENITOR CELLS FROM DIGESTED ADIPOSE TISSUE IN A MANNER CONSISTENT WITH THE PRODUCTS PUBLISHED INSTRUCTIONS FOR USE.  THE PURCHASER UNDERSTANDS AND AGREES THAT CYTORI DOES NOT SUPPORT OR RECOMMEND ANY THERAPEUTIC USE OR METHODS. PURCHASER ALSO UNDERSTANDS THAT MISUSE OF THE PRODUCTS COULD BE DANGEROUS.

Purchaser Representation: Purchaser represents it has examined the products and that they are acceptable for its intended laboratory use.

Resale Prohibited: Purchaser shall purchase the products for its own use only, and shall not resell the products to any other party.

Claims: The Purchaser shall make no false or misleading representations to other persons with regard to the Products or Cytori, and shall not make any representations with respect to the specifications, features or capabilities of the Products which are not entirely consistent with those described in literature distributed by Cytori.

Compliance with Laws/Regulatory: Purchaser will comply with all applicable laws and regulations in its use of the Products.  Regulatory approval for use and/or Importation into Purchasers country is the responsibility of the Purchaser.

Title, Acceptance, Risk of Loss and Returns:   Title to Products and all risk of loss shall pass from Cytori to Purchaser at the time and place of Cytori’s delivery of Products to carrier, FCA (Incoterms 2000) Cytori’s facility at San Diego, CA, or as otherwise agreed by the parties in writing. Notwithstanding that Cytori may retain rights of possession or repossession to ensure collection of the purchase price thereof. Products are deemed accepted upon shipment. Products may be returned only as specified pursuant to this agreement.

Software License:      With respect to the software products incorporated in or forming a part of the Products hereunder, Cytori and Purchaser intend and agree that such software products are being licensed and not sold, and that the words “purchase”, “sell” or similar or derivative words are understood and agreed to mean “license”, and that the word “Purchaser” or similar or derivative words are understood and agreed to mean “licensee” with respect to the software component.  Notwithstanding anything to the contrary contained herein, Cytori or its licensor, as the case may be, retains all rights and interest in software products provided hereunder. Cytori hereby grants to Purchaser a royalty-free, non-exclusive license to use the software provided hereunder solely for end-users business purposes in the hardware products provided hereunder.   This license terminates when Purchaser’s lawful possession of the hardware products provided hereunder ceases, unless earlier terminated as provided herein.  Purchaser agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the software products and related documentation provided hereunder. Purchaser may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the software products provided hereunder without Cytori’s prior written consent.  Cytori will be entitled to terminate this license if Purchaser fails to comply with any term or condition herein.  Purchaser agrees, upon termination of this license, immediately to return to Cytori all software products and related documentation provided hereunder and all copies and portions thereof. Certain of the software products provided by Cytori may be owned by one or more third parties and licensed to Cytori.  Accordingly, Cytori and Purchaser agree that such third parties retain ownership of and title to such software products.

Limitation of Liability: EXCEPT AS EXPRESSLY SO WARRANTED BELOW, CYTORI HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, STATUTORY AND IMPLIED, APPLICABLE TO THE PRODUCTS INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, DESIGN, AND/OR FITNESS FOR A PARTICULAR PURPOSE.  THE WRITTEN LIMITED WARRANTY, IF ANY, APPLICABLE TO ANY PARTICULAR PRODUCT SHALL STATE THE FULL EXTENT OF CYTORI’S LIABILITY, WHETHER DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL, RESULTING FROM ANY BREACH OF SUCH WARRANTY.  CYTORI FURTHER DISCLAIMS ALL EXPRESS, STATUTORY AND IMPLIED WARRANTIES APPLICABLE TO THE PRODUCTS WHICH ARE NOT MANUFACTURED BY CYTORI, OR BY A LICENSEE OR SUBLICENSEE OF CYTORI.  THE ONLY WARRANTIES APPLICABLE TO PRODUCTS NOT MANUFACTURED BY CYTORI OR BY A LICENSEE OR SUBLICENSEE THEREOF SHALL BE THE INCLUDED WARRANTIES, IF ANY, OF THE MANUFACTURERS OF THOSE ITEMS.

Cytori shall not in any event be liable to Purchaser for any indirect, incidental, special, punitive or consequential damages (including any damage for lost profits), or otherwise arising out of or in connection with furnishing of products, parts or service hereunder, or the performance, use of, or inability to use any products, parts or service, or otherwise, whether based in contract, warranty, tort, including without limitation, negligence, or any other legal or equitable theory. Cytori’s total liability for any claim or action shall not exceed the purchase price of the products out of which such claim or action arose.

Acknowledgment of Ownership:   Purchaser acknowledges that (a) Cytori owns the Cytori Marks and all goodwill associated with or symbolized by Cytori Marks, (b) Purchaser has no ownership right in or to any Cytori Marks, and (c) Purchaser shall acquire no ownership interest in or to any of Cytori Marks.

Purchaser shall not use any Cytori Marks in any manner as a part of its business, corporate or trade name or otherwise. Purchaser may not change, adulterate, obscure, remove or deface trademarks, tradenames or labels appearing on any Product of Cytori.

Intellectual Property Rights: In all cases, all intellectual property rights in and to, and all technology relating to, the Products supplied to Purchaser, their design and all improvements thereto or thereof, whether or not such Product, design or improvement is made pursuant to Purchaser’s specifications or at Purchaser’s expense, shall be and remain the exclusive property of Cytori. Any knowledge or information that Purchaser may disclose to Cytori shall not be deemed to be confidential or proprietary information, and shall be acquired by Cytori free from any restriction. Purchaser agrees to hold in confidence and not to sell, transfer, license, loan or otherwise make available in any form to third parties the Products and related documentation provided hereunder. Purchaser may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the Products provided hereunder without Cytori’s prior written consent.

Miscellaneous: Any required notices shall be given in writing, at the address set forth on the Purchase Order or to such other address as either party may substitute by written notice to the other and shall be deemed given upon personal delivery, overnight delivery or three days following deposit in the mail.

Except as expressly provided herein, no changes or modifications to, or waiver of, any of these terms and conditions shall be valid or binding on either party unless in writing and signed by an authorized representative of each party.

Cytori’s failure or delay to exercise or enforce any of its rights hereunder shall not constitute or be deemed to be a waiver of such rights or forfeiture of such rights, and Cytori may, at its option, from time to time, exercise any of its rights or remedies.

These Terms bind Purchaser and its successors and permitted assigns. Cytori will use its reasonable efforts to fill orders, but Cytori shall not be liable for nonperformance or delays caused by a shortage of raw materials, manufacturing problems, delivery or labor problems, priorities, acts of regulatory agencies or judicial bodies, discontinuation of a product line, acts of God or third parties, infringement claims, or other causes beyond its reasonable control. Purchaser agrees that in such events Cytori may allocate products among all purchasers as it deems reasonable, without liability. Cytori reserves the right from time to time to substitute a product with a product that has the same function as such product, or to delete a product.

The products are sold subject to California law. These terms and any dispute or claim relating to these terms or the sale of products (“Claim”) shall be governed by and construed under California law, notwithstanding its law of conflicts of law. If any Claim cannot be settled amicably between the parties, such Claim shall be settled by arbitration, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The decision of the arbitrator(s) shall be final and binding upon the parties and judgment upon the award may be entered in any court having jurisdiction thereof.

Cytori shall promptly deliver written notice or verbal, followed by written, notice of any recall of Product. Cytori shall replace, to the extent reasonably possible, any such recalled Products as soon as practicable with comparable Products not subject to such recall.

If any of the products are medical devices, Purchaser agrees to notify Cytori within ten (10) days of the occurrence of any serious illness or injury involving such devices, and within seventy-two hours of any death in connection with the use of the device. Purchaser shall maintain adequate tracking for the products to enable Cytori to meet the FDA requirements applicable to the tracking of medical devices.

NEW PRODUCT LIMITED WARRANTY:  Cytori Therapeutics, Inc. (Cytori) warrants that all new Products will operate substantially in conformance with Cytori’s published specifications and be free from defects in material and workmanship, when subjected to normal, proper and intended usage by properly trained personnel, for a period of one (1) year from the date of shipment to Purchaser (the “Warranty Period”).  Cytori agrees during the Warranty Period, provided it is promptly notified in writing upon the discovery of any defect and further provided that all costs of returning the defective Products to Cytori are pre-paid by Purchaser, to repair or replace, at Cytori’s option, defective Products so as to cause the same to operate in substantial conformance with said specifications.  Replacement parts may be new or refurbished, at the election of Cytori.  All replaced parts shall become the property of Cytori.  Shipment to Purchaser shall be paid for by Cytori during the Warranty Period.  Lamps, fuses, bulbs and other expendable items are expressly excluded from this limited warranty.    In no event shall Cytori have any obligation to make repairs, replacements or corrections required, in whole or in part, as the result of (i) normal wear and tear, (ii) accident, disaster or event of force majeure, (iii) misuse, fault or negligence of or by Purchaser, (iv) use of the Products in a manner for which they were not designed, (v) causes external to the Products such as, but not limited to, power failure or electrical power surges, (vi) improper storage of the Products or (vii) use of the Products in combination with equipment or software not supplied by Cytori.  If Cytori determines that Products for which Purchaser has requested warranty services are not covered by the warranty hereunder, Purchaser shall pay or reimburse Cytori for all costs of investigating and responding to such request at Cytori’s then prevailing time and materials rates according to the payment terms provided elsewhere herein.  Cytori will provide repair services or replacement parts that are not covered by the warranty during the Warranty Period subject to Purchaser’s payment to Cytori at Cytori’s then prevailing time and materials rates for such repairs.  ANY DAMAGE CAUSED BY UNAUTHORIZED INSTALLATION, MAINTENANCE, REPAIR, SERVICE, RELOCATION OR ALTERATION TO OR OF, OR OTHER TAMPERING WITH, THE PRODUCTS PERFORMED BY ANY PERSON OR ENTITY OTHER THAN CYTORI WITHOUT CYTORI’S PRIOR WRITTEN APPROVAL, OR DAMAGE CAUSED BY USE OF REPLACEMENT PARTS NOT SUPPLIED BY CYTORI, SHALL IMMEDIATELY VOID AND CANCEL ALL WARRANTIES WITH RESPECT TO SUCH DAMAGE