Terms and Conditions for Nulisa Technology Access Program Services

These Terms and Conditions for the NULISA™ Proteomics Technology Access Program, together with the sales quote (“Sales Quote”) provided by Alamar Biosciences, Inc. (“Alamar”) to customer identified on such Sales Quote (“Customer”) and the work plan (the “Work Plan”) set forth in Section 11 below, constitute a binding legal agreement (collectively, the “Agreement”) with respect to the provision by Alamar to the Customer of the services described herein, in the Sales Quote, and in Work Plan (the “Services”). If a purchase order or other form containing terms and conditions is used by Customer, Alamar objects to any such terms and conditions. By placing an order for the Services, Customer accepts and agrees to be bound by the terms and conditions in this Agreement, and these terms shall supersede and replace any contrary terms in an order, acceptance or acknowledgement. The parties hereto are sometimes referred to herein each individually as a “Party” and collectively as the “Parties.” The Parties agree as follows:

1. Scope of agreement: Each Party shall perform its activities hereunder in accordance with the goals, objectives, and tasks described in the Work Plan, in a good scientific manner, and in compliance with all applicable laws, rules and regulations. Alamar shall provide to Customer any required deliverables in accordance with the Work Plan (the “Deliverables”). As this work is part of a technology access program designed in part for Alamar to solicit feedback from its customers, Customer agrees to provide to Alamar information and feedback relating to the Services and Deliverables on such intervals as are mutually agreeable to the Parties during the term of the Agreement.
   
   
2. Materials: In connection with this Agreement, Customer will deliver to Alamar a quantity of materials (the “Materials”) as described in the Work Plan. Without Customer’s prior written consent, the Materials may not be used by Alamar for any purpose other than as specifically described in the Work Plan. Both Parties acknowledge that the Materials and any information related thereto are deemed to be confidential and proprietary, and Alamar shall not (i) disclose such information to any third party whatsoever or (ii) attempt to reverse engineer, deconstruct, synthesize or in any way determine the structure or composition of the Materials, or sell, transfer, disclose or otherwise provide access to the Materials to third parties. Alamar will use the Materials in compliance with all applicable laws and regulations. Customer represents and warrants that it has all rights and has obtained all consents required under applicable laws to provide the Materials to Alamar. Following completion of the Services, Alamar will return to Customer or otherwise dispose of any remaining Materials, as mutually determined in good faith by the Parties, at Customer’s expense. All Materials are provided on an “as-is” basis without any warranty or guarantee whatsoever. All Materials shall be coded and de-identified by Customer prior to transfer to Alamar in accordance with privacy standards under applicable laws and regulations. Customer agrees that the Materials will not contain any personally identifiable information. The transfer of the Materials hereunder grants no rights to Alamar other than those specifically set forth herein.
   
   
3. Technology Access Program: The Parties agree and acknowledge that Alamar is performing Services as part of a technology access program that Alamar is offering for the benefit of its customers and for information and feedback purposes. Customer acknowledges that Alamar has not promised or guaranteed to Customer that these Services will continue to be made available to anyone in the future, and that Alamar has no express or implied obligation to Customer to offer any related services. Accordingly, Customer acknowledges that any research or development that Customer performs using the results of the Services or the Deliverables hereunder is done at Customer’s own risk.
   
   
4. Confidentiality: It is anticipated that information that is maintained in confidence by or on behalf of a Party (“Confidential Information”) will be disclosed, in writing, orally, or by inspection of tangible objects, by one Party (a “Disclosing Party”) to the other Party (a “Receiving Party”) in the course of performing activities contemplated by this Agreement. The Receiving Party shall hold the Confidential Information of the Disclosing Party in confidence and neither disclose the same to third parties for a period of five (5) years from the termination or expiration of this Agreement, nor use the Confidential Information for any purpose other than to perform the activities contemplated by this Agreement; provided, however, that Alamar shall have the right to generically disclose the results it has obtained with respect to specific targets, but only to the extent it does not identify any proprietary elements of the samples, or the identity of the Customer in connection with such targets. The Receiving Party will limit its employees to whom the Confidential Information is disclosed to those who reasonably require it in order to conduct the Work Plan and who are bound by obligations of non-use and nondisclosure consistent with the terms of this Agreement. Confidential Information will not include any information that (i) is now, or hereafter becomes, generally available to one or more others not under an obligation of confidence to the Disclosing Party through no action or inaction of the Receiving Party; (ii) is already in the possession of the Receiving Party at the time of disclosure by the Disclosing Party, as shown by the Receiving Party’s files and records; (iii) is obtained by the Receiving Party from a third party without a breach of the third party’s obligations of confidentiality; or (iv) is independently developed by the Receiving Party without use of or reference to the Disclosing Party’s Confidential Information, as shown by documents and other competent evidence in the Receiving Party’s possession. Upon the Disclosing Party’s request, the Receiving Party will promptly destroy or deliver to the Disclosing Party all Confidential Information; provided, however, that the Receiving Party may retain one copy only of the Confidential Information in a secure location with appropriately restricted access solely to monitor compliance with this Agreement. As this is a technology access program, Alamar requires the following right to review publications relating to this Work Plan. In the case of a public disclosure by Customer of results and data derived from the Work Plan, Customer will provide Alamar with a draft of the proposed disclosure for review at least thirty (30) days prior to submission for publication and/or public presentation to identify any inadvertent disclosure of Alamar’s Confidential Information, which Alamar may require to be removed from the publication, or to identify patentable subject matter. If necessary to permit the preparation and filing of a patent application, the submission shall be delayed up to an additional sixty (60) days.
   
   
5. Deliverables & Intellectual Property: Ownership of inventions and/or discoveries developed in connection with this Agreement shall follow inventorship under U.S. patent law, provided that Customer shall have all right, title, and interest in and to the Deliverables provided to it in accordance with the Work Plan, and provided further that Customer grants to Alamar a right and license to use (including with its contractors under obligations of confidentiality) the de-identified data generated hereunder and Materials solely for the purpose of Alamar’s internal development of its NULISA proteomics platform. Each Party shall retain all rights in and to all of its intellectual property owned by a Party prior to, or independent of, the Work Plan (“Background IP”). Except for rights explicitly granted in this Agreement, nothing in this Agreement shall be construed as conferring on either Party a license or option to license any technology, patents, or other intellectual property rights owned by the other Party, or otherwise altering either Party’s rights in any patents or Background IP. Notwithstanding anything to the contrary contained herein, Alamar shall own all right, title and interest in and to improvements or derivates to its Background IP created in connection with a Work Plan. If any Deliverables and related data are provided to Customer electronically (“Customer E-Data”), including through an online portal, Customer acknowledges that, despite reasonable precautions taken by Alamar, it may be possible for third parties to intercept or access Customer E-Data or for the Customer E-Data to be lost or destroyed. Alamar cannot guarantee the security of Customer E-Data and is not responsible for any unauthorized access or loss or destruction of Customer E-Data, except in cases of Alamar’s gross negligence or willful misconduct. While Alamar may arrange for online access to Customer E-Data following the initial delivery of the Deliverables, Alamar has no obligation to provide ongoing access to the Customer to the Customer E-Data following initial delivery and Alamar may delete or discontinue Customer’s access to such Customer E-Data at any time following initial delivery, with notice to Customer. It is Customer’s responsibility to store and back-up its Deliverables following Alamar’s initial delivery.
   
   
6. Budget: Customer shall pay to Alamar all amounts due as stated in the Sales Quote or in the Work Plan, such amounts to be invoiced in connection with each Deliverable provided hereunder, subject to the following provision. In the event Customer has not provided to Alamar the samples required for the Services within ninety days of Alamar’s acceptance of Customer’s purchase order, Alamar will invoice Customer promptly thereafter. The foregoing provision is to ensure timely receipt of samples in order to accommodate laboratory scheduling demands. Customer will pay Alamar within thirty (30) days of receipt of invoice. All amounts paid hereunder are nonrefundable.
   
   
7. DISCLAIMER OF WARRANTIES: EXCEPT AS EXPRESSLY SET FORTH HEREIN, EACH PARTY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE MATERIALS, SERVICES, OR DELIVERABLES HEREUNDER INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, VALIDITY OF ANY INTELLECTUAL PROPERTY RIGHTS OR CLAIMS, WHETHER ISSUED OR PENDING, AND THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE.
   
   
8. LIMITATION OF LIABILITY: NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL EITHER PARTY, OR ANY OF ITS TRUSTEES, DIRECTORS, OFFICERS, MEDICAL OR PROFESSIONAL STAFF, EMPLOYEES, RESEARCHERS, AGENTS, OR AFFILIATES BE LIABLE TO THE OTHER PARTY FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING IN ANY WAY OUT OF THIS AGREEMENT OR THE RIGHTS GRANTED HEREUNDER, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, REGARDLESS OF WHETHER SUCH PARTY SHALL BE OR HAVE BEEN ADVISED, SHALL HAVE REASON TO KNOW OR IN FACT SHALL KNOW OF THE POSSIBILITY OF THE FOREGOING. IN ADDITION, EXCEPT TO THE EXTENT CAUSED BY A PARTY’S WILLFUL MISCONDUCT, IN CONNECTION WITH VIOLATIONS OF CONFIDENTIALITY, OR AS REQUIRED BY APPLICABLE LAW, EACH PARTY’S LIABILITY TO THE OTHER PARTY HEREUNDER SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER TO ALAMAR HEREUNDER.
   
   
9. Miscellaneous: This Agreement sets forth the entire agreement and understanding between the Parties with respect to the subject matter hereof and supersedes all prior agreements between the Parties with respect to such subject matter. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California without reference to its choice of law rules. Neither Party may assign in whole or in part this Agreement without the advance written consent of the other Party, except that either Party may assign this Agreement in its entirety to its successor-in-interest in connection with a merger, consolidation, or other corporate reorganization, or the sale of all or substantially all of its assets. Neither Party shall use the name or logo of the other Party in any advertising or promotional literature without the written permission of the other, provided, however, that each Party is permitted to publicly disclose the existence of this Agreement in a release, or in presentations to investors, generally describing the nature of the Agreement (which may include use of the other Party’s name or logo in the context of such disclosure). If one or more of the provisions in this Agreement are deemed unenforceable by law, then such provision shall be deemed stricken from this Agreement and the remaining provisions shall continue in full force and effect.
   
   
10. Work Plan
    1. NULISA Services. NULISA products, services and data related thereto are for Research Use Only (RUO) and are not for use in diagnostic procedures. Customer agrees that it shall only use the assay results for its research purposes, and not for any patient care or clinical use.
    2. Material to be Provided by Customer: Customer will provide to Alamar number of samples, sample volumes, sample type and shipping conditions as stated in the Sales Quote, at such time and according to such specifications to be mutually agreed upon in good faith by Alamar and Customer. Customer must ensure that samples and related documentation and packaging are de-identified from donors and do not contain personally identifiable information of any donor. Customer  should provide the samples to Alamar within 30 days of Alamar’s acceptance of Customer’s purchase order unless otherwise agreed upon. But in no case should samples be provided more than 90 days after Alamar’s acceptance of Customer’s purchase order Customer shall be responsible for delivering samples in such a manner as to reasonably ensure sample integrity upon delivery to Alamar, and may be required to provide additional paperwork prior to shipment to ensure Alamar can accept the samples safely and in compliance with applicable regulations.
    3. Work Performed by Alamar: Alamar will perform the NULISA Services, using the agreed upon target(s), panel(s) and assay setup, including replicates and controls, along with applicable reagents supplied by Alamar, on the number of samples defined in the Sales Quote, with such samples to be provided by Customer. Alamar and Customer will discuss in good faith and define the selection process for the targets of interest. The Alamar laboratory is not certified under ISO standards and may not perform sample testing in accordance with all Good Laboratory Practice (GLP) regulations.
    4. Deliverables Provided by Alamar: An assay report (or preliminary and/or intermediate reports as agreed upon in the Work Plan, including raw data and processed results), will be provided by Alamar to Customer.