Supplier Terms of Use

April 2022

By registering for and using the Backoffice or any of the services of The Assay Depot, Inc. (including without limitation, the research concierge service) ("Scientist.com") (collectively, the "Service" or the "Platform"), you are agreeing to be bound by the following terms and conditions ("Terms of Use"). Any new features or tools that are added to the current Service shall be also subject to the Terms of Use. You can review the most current version of the Terms of Use at any time at https://backoffice.scientist.com/legal-notices/supplier-terms-of-use.

References in this Terms of Use to "you" and/or the "Supplier" are to you, an individual where you are the Supplier and do not represent an entity or organization on the Platform, or, where the Supplier is an organization or entity, the entity or organization that you do represent on the Platform. Where the Supplier is an entity or organization, it shall ensure that all its representatives who use the Platform comply fully with this Terms of Use and Supplier shall be liable for any breach of this Terms of Use by any of its representatives.

You must read, agree with and accept all of the terms and conditions contained in this Terms of Use before you may become a user of the Service. By registering to use the Platform, you represent and warrant to Scientist.com that you have read and agree to this Terms of Use and that to the extent such acceptance is made on behalf of any entity or other organization, that you have the right and authority to bind the organization that you represent on the Platform to this Terms of Use. Only parties that can lawfully enter into and form contracts under applicable law may use the Platform. By registering for and using the Platform, the Supplier hereby warrants and represents to Scientist.com that Supplier has such ability to enter into contracts and to the extent such acceptance is made on behalf of any entity or organization, the individual making such acceptance is authorized to bind such entity or organization to this Terms of Use.

Scientist.com reserves the right to update and change the Terms of Service by posting updates and changes to the Backoffice website, located at https://backoffice.scientist.com. You are advised to check the Terms of Use from time to time for any updates or changes that may affect you.

Scientist.com and the Supplier agree to be bound by all terms and conditions of this Terms of Use, and by the Platform's Global Privacy Policy and other Scientist.com policies from time to time (including in relation to Personal Data obtained by Scientist.com from or about individuals located in the European Economic Area and/or Switzerland, Scientist.com's European Privacy Policy) (collectively "Policies"), links to which are available on the app.scientist.com website, and which are incorporated herein by reference. This Terms of Use supersedes all other terms of use relating to the Platform between Scientist.com and the Supplier.

In the event of a conflict between Scientist.com's European Privacy policy and the Platform's Global Privacy Policy, the European Privacy Policy shall prevail.

In the event of any conflict in relation to Personal Data between these Terms of Use and/or the agreement(s) you may enter into with Scientist.com to provide your goods and services to third parties ("Clients") ("Supplier Services") via the Platform and under which such Clients have rights as third party beneficiaries ("Supplier Agreement(s)") and the Platform's relevant privacy policy, the Platform's relevant privacy policy shall prevail.

A.

Group Profile

If and where within your profile on the Platform you add details of one or more additional legal entities;

1. you warrant, represent, and undertake to Scientist and all relevant Clients;a) that such legal entities are your Affiliates (as defined in the Supplier Agreement) (“Affiliates”):b) you have all necessary rights, permissions and authority to do so;where you pass details of a Client request made via the Platform or any communications from a Client relating to that request to any such Affiliate, the Affiliate accepts the terms of the relevant Supplier Agreement governing that request and such Affiliate agrees that by receiving such information from you it automatically enters into the Pre-SOW CDA with the Client in question. In addition, before providing any details of a Client request or any communications from a Client relating to such request to any such Affiliate, you have entered into obligations of confidentiality and non-use with that Affiliate on terms no less onerous than those set forth in the Pre-SOW CDA
2. You will procure that any use of the Platform by such Affiliate(s) is on the terms of this Terms of Use, references herein to “you” or the “Supplier” being deemed to be reference to the Affiliate in question, save whereas the context requires otherwise.
3. You are jointly and severally responsible for any breach of the Terms of Use or relevant Supplier Agreement or Pre-SOW CDA by you and your Affiliate(s).
4. All information and responses provided by you in response to the active commercial due diligence RFI on the Platform as at the date of this Terms of Use and from time to time thereafter are complete, truthful, not misleading and accurate in all respects in relation to you and all the Affiliates and you will promptly update and keep updated such responses via the Platform functionality to ensure your ongoing compliance with this clause A 4.
5.

If you submit an SOW in the name of an Affiliate, you warrant, represent, and undertake to Scientist.com and the relevant Client that:

a) You have all rights, permissions and authority to do so and to bind the Affiliate to the same (including without limitation the terms of the applicable Supplier Agreement)
b) You shall procure the Affiliate complies with the SOW in question (including without limitation the terms of the applicable Supplier Agreement)
c) in the event of any breach of the SOW in question by the Affiliate (whether in contract, tort, or otherwise), you shall be jointly and severally responsible (along with that Affiliate) for such breach and any act or omission of the Affiliate relating thereto or arising therefrom, including without limitation, any negligence or wilful misconduct of the Affiliate.
6. Any notices or other communications to be given by Scientist.com under this Terms of Use, Supplier Agreements and/or any SOWs shall be sent to you who in turn shall be responsible for notifying relevant Affiliates in a timely manner.
7. Scientist.com reserves the right to remove an Affiliate from your profile or to refuse to allow you to add an Affiliate under your profile. Scientist also has the right to carry out due diligence and credit checks on you and all Affiliates.
8. Your obligations and responsibilities set forth in Section A in respect of each Affiliate and all liabilities relating thereto (including the joint and several liability for SOW’s entered into in the name of an Affiliate before their removal from your profile) will survive the removal of the respective Affiliate from your profile and/or termination of this Terms of Use.
9. You specifically acknowledge and agree that this Section A has been entered into by you and Scientist.com in order to confer benefit to Scientist.com and Clients. As such Clients are intended third party beneficiaries of this Section A and can enforce such terms of this Terms of Use and pursue all forms of redress it is entitled to under the law or in equity at any time and from time to time as if they were a party to this Agreement.
10. You warrant, represent, and undertake to Scientist.com and all Clients that the Affiliates in question agree with the terms of this Section A.

B.

Account Terms

1. You must provide your legal entity name, a valid company email address, and any other information requested in order to complete the supplier registration process.
2. Your login may only be used by one person. You may create separate logins for up to 20 users.
3. You are responsible for maintaining the security of your account and password. Scientist.com cannot and will not be liable for any loss or damage from your failure to comply with this security obligation.
4. You are responsible for all Backoffice content posted and activity that occurs under your account.
5. You agree not to transmit any spam, worms or viruses or any code of a destructive nature.
6. You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright or trademark laws).

You agree to accept responsibility for all activities that occur under Supplier's account. Scientist.com will follow industry-standard best practices and internal policies regarding security. Supplier is responsible for the following:

i. Notifying Scientist.com promptly of suspected or actual network or service problems;
ii. Understanding and complying with contractual obligations to Scientist.com and/ or Clients.
iii. Notifying Scientist.com of terminated employees who were authorized to direct service changes.
iv. Ensuring that Supplier's personnel who use the Platform in accordance with this Agreement use the Platform in an appropriate manner;
v. Validating that its own equipment is patched and updated appropriately, that Internet connectivity is secured, and that resident data is protected, including physical security precautions.
vi. Maintaining its own system(s) of record and for validating that mechanisms are in place to monitor and protect content of information passing through Supplier's own network; and
vii.

Following best-practices pertaining to personal security such as, but not limited to:

a. Not sharing login credentials for the Platform with any third party
b. Log out when the Platform is not in use; and
c. Only sharing necessary information

Supplier shall not, and shall not permit others to, do the following with respect to the Platform:

i. license, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the Platform available for access by third parties except as otherwise expressly provided in this Terms of Use;
ii. access or use the Platform for the purpose of developing or operating products or services intended to be offered to third parties in competition with the Platform or allow access by a direct competitor of the Platform;
iii. reverse engineer, decompile, disassemble, copy, or otherwise attempt to derive source code or other trade secrets from or about the Platform or any part of it;
iv. use the Platform in a way that (a) violates or infringes upon the rights of a third party, including those pertaining to: contract, intellectual property, privacy, or publicity; or (b) effects or facilitates the storage or transmission of libelous, tortious, or otherwise unlawful material including, but not limited to, material that is harassing, threatening, or obscene; or
v. interfere with or disrupt the integrity, operation, or performance of the Platform or interfere with the use or enjoyment of it by others by, among other things, using it to create, use, send, store, or run viruses or other harmful computer code, files, scripts, agents, or other programs or circumvent or disclose the user authentication or security of the Platform or any host, network, or account related thereto.

Supplier warrants, represents and undertakes that all answers and supporting documentation provided to Scientist.com in response to any RFI available via the platform from time to time are complete, truthful, not misleading and accurate at the time of submission and the Supplier will promptly inform Scientist.com via the Platform functionality, of any changes to this information via submission of an updated Request for Information form.

"RFI" means any and all online question set available within a Supplier's company profile on the Platform, the answers to which (along with supporting documentation provided by the Supplier) are able to be reviewed by Clients using the Platform functionality.

Supplier will indemnify Scientist.com, and its employees, directors, agents, and representatives ("Indemnified Parties") from, and defend the Indemnified Parties against, any claim to the extent arising from or related to any breach by Supplier of its obligations under this Section B.

C.

Copyright and Trademarks

1. All content included on the Backoffice, such as text, graphics, logos, button icons, images, data compilations, and software, is the property of Scientist.com or its service providers and is protected by United States and international copyright laws. The compilation of all content on the Backoffice is the exclusive property of Scientist.com and is protected by U.S. and international copyright laws. All software used on the Backoffice is the property of Scientist.com or its software suppliers and is protected by United States and international copyright laws.
2. Scientist.com and other Backoffice graphics, logos, page headers, button icons, scripts, and service names are trademarks, service marks or trade dress of Scientist.com in the U.S. and/or other countries. Scientist.com's trademarks, service marks and trade dress may not be used in connection with any product or service that is not Scientist.com's in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits Scientist.com. All other trademarks or service marks not owned by Scientist.com that appear on the Backoffice are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Scientist.com.

D.

License and Site Access

1. Scientist.com, its affiliates or licensors own all right, title and interest in and to any and all software, copyright, trademark rights, patent rights, database rights and other intellectual property or other rights in and to the Platform and its components and any improvements, design contributions, updates, or derivative works thereto, and any knowledge or process related thereto and/or provided hereunder. Supplier shall have no right, title or interest in or to use the Platform, save for the limited license granted hereunder. Scientist.com grants you a limited license to access and make personal use of the Backoffice and not to download (other than page caching) or modify it, or any portion of it, except with express written consent of Scientist.com. This license does not include any resale or commercial use of the Backoffice or its contents; any collection and use of any service listings, descriptions, or prices; any derivative use of the Backoffice or its contents; any downloading or copying of account information for the benefit of another merchant; or any use of data mining, robots, or similar data gathering and extraction tools.
2. The Backoffice website or any portion of the Backoffice may not be reproduced, duplicated, copied, sold, resold, visited, or otherwise exploited for any commercial purpose without express written consent of Scientist.com. You may not frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout, or form) of the Backoffice without express written consent. You may not use any meta tags or any other "hidden text" utilizing Scientist.com's name or trademarks without the express written consent of Scientist.com. Any unauthorized use terminates the permission or license granted by Scientist.com.
3. You are granted a limited, revocable, and nonexclusive right to create a hyperlink to the home page of the Backoffice so long as the link does not portray Scientist.com, or its products or services in a false, misleading, derogatory, or otherwise offensive matter. You may not use any Scientist.com logo or other proprietary graphic or trademark as part of the link without express written permission.

E.

Confidentiality and Content Ownership

1. All information and data delivered or made available by a party to the other party, including but not limited to timeline entries, quote requests, quotes, statements of work pursuant to Supplier Agreements ("SOW's"), orders, changes orders and invoices that are communicated in or outside of the Scientist.com platform, is the proprietary and confidential information of the disclosing party (the "Information"). Each party agrees to protect the Information and not to distribute or allow access to the Information to any other party without the prior written consent of the disclosing party, nor will a party make use of any of the other party's Information except in the performance of rights or obligations under the terms and conditions of this Agreement. The obligations in this paragraph shall not apply to data or information which: (a) is or becomes generally available to the public through no breach of this or any other confidentiality obligation, (b) was lawfully in the possession of the receiving party prior to the receipt of such data or information from the disclosing party without an obligation of confidentiality, (c) is or has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the receiving party, (d) is independently developed by the receiving party without regard to or use of the Information of the other party. Notwithstanding the above, Scientist.com shall be entitled to use a summary of data generated through the use of the Backoffice and other similar information generated through the use of the Backoffice provided that any company and personal identifying information is removed from such data or information. Further, nothing shall prevent either party from disclosing Information pursuant to a request of any court, government or governmental agency or as required by applicable law; provided, however, that the receiving party shall give the disclosing party prompt notice of the required disclosure (to the extent permitted by law), and shall provide disclosing party (at disclosing party's cost) with reasonable assistance to the extent disclosing party seeks a protective order or other means to preserve the confidentiality of the information required to be disclosed.
2.

Confidentiality between Client and Suppliers - Pre-SOW

The Supplier acknowledges and agrees that unless notified to the Supplier otherwise, from and including 1 November, 2020, a binding non-disclosure agreement covering certain pre-SOW exchanges of information between Supplier and Client in the form set forth in Annex 1 will automatically be entered into as set forth therein between Supplier and Client in relation to existing Requests for Proposal for which no SOW has been issued as at that date ("Live Requests") and new Requests for Proposal issued on or after that date ("New Requests") (the "Pre-SOW NDA"). Each relevant Client shall be a third party beneficiary of this Section E paragraph 2.

F.

Service and Product Sales

1. The decision whether to obtain any services or products from you shall be in the sole discretion of users. Other purchase terms and conditions are described in the Supplier Agreement associated to your request.

G.

Cancellation and Termination

1. You can cancel the Scientist.com Service at any time.
2. Scientist.com, in its sole discretion, has the right to suspend or terminate your account and refuse any and all current or future use of the Service, or any other Scientist.com service, for any reason at any time.

H.

Maintenance and Warranty Disclaimer

1. Scientist.com will use commercially reasonable efforts to maintain the Backoffice. Access to the Backoffice and/or other Scientist.com websites is provided on an "as is" basis. Except as expressly set forth in this Terms of Use, Scientist.com makes no other representations or warranties of any kind, express or implied, including without limitation, (i) any implied warranties of merchantability, fitness for a particular purpose, title, or non-infringement, (ii) that the Backoffice will meet your requirements, will always be available, accessible, uninterrupted, timely, secure, or operate without error, and (iii) any implied warranty arising from course of dealing or usage of trade. TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SCIENTIST.COM DISCLAIMS ANY AND ALL SUCH WARRANTIES.
2. You represent and warrant that you own or otherwise control all of the rights to the content that you post; that the content is accurate; that use of the content you supply does not violate this policy and will not cause injury to any person or entity; and that you will indemnify Scientist.com for all claims resulting from content you supply. Scientist.com has the right but not the obligation to monitor and edit or remove any activity or content. Scientist.com takes no responsibility and assumes no liability for any content posted by you or any third party.

I.

Data Protection

1.
"Account Data" means together the Supplier Account Data and the Scientist.com Account Data;
"Affiliate" means with respect to a party, any person, corporation or other entity that controls, is controlled by, or is under common control with either party. For the purposes of this definition only, "control" means; (i) to possess directly or indirectly, the power to direct the management or policies of such person, corporation or other entity, whether through ownership of voting securities or by contract relating to voting rights or corporate governance, or (ii) to own directly or indirectly 50% or more of the outstanding voting securities or other ownership interests of such person, corporation, or other entity, (iii) in the case of a partnership, control of the general partner;
"Agreement" means these Terms of Use together with any other agreement entered into between the Supplier and Scientist.Com, including any Supplier Agreement or Additional Terms;
"Client" those that register to use the Platform and who may enter into contracts to receive goods and/or services from the Supplier via the Platform;
"Data Controller" has the meaning given to it in the Data Protection Laws;
"Data Processor" has the meaning given to it in the Data Protection Laws;
"Data Protection Impact Assessment" means an assessment of the impact of the envisaged Processing operations on the protection of Personal Data, as required by Article 35 of the GDPR;
"Data Protection Laws" (a) any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) which relates to the protection of individuals with regards to the Processing of Personal Data in the United Kingdom, European Union, EEA or Switzerland, the GDPR (on and from 25 May 2018) any national laws implementing the GDPR or setting out local derogations or additions; and (b) any code of practice or guidance published by the ICO or other applicable Regulator or the European Data Protection Board from time to time;
"Data Protection Particulars"
The subject matter and duration of the Processing For the duration of the Supplier Agreement and any SOW's entered into and for the period thereafter as required for Scientist.com to perform its surviving obligations under the Supplier Agreement and/or Marketplace Agreement and for the duration of the statutory contractual claim period thereafter and for the length of time required for Scientist.com's lawful record keeping and internal audit purposes, (whichever is the longer).
The nature and purpose of the Processing Supplier Account Data: for administration of the Agreement

Service Data: to facilitate the introduction of Clients and Suppliers and interaction of Client and Suppliers through the Platform
The type of Personal Data being Processed Supplier Account Data: name, email address, phone number and/or contact information

Service Data: name, contact information
The categories of Data Subjects Individual traders, company representatives
"Data Subject Request" an actual or purported subject access request or notice or complaint from (or on behalf of) a Data Subject exercising his/her rights under the Data Protection Laws;
"Data Subject" has the meaning given to it in the Data Protection Laws;
"EEA" means the European Economic Area;
"Employees" means all staff, including directors, officers and employees, as well as the agents and workers (including self-employed contractors) of either party together with the directors, officers and employees of such party's sub-contractors or suppliers and further down any contractual chain, and "Employee" shall mean any one of them individually as the context dictates;
"GDPR" means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119/1, 4.5.2016;
"ICO" means the UK Information Commissioner's Office, or any successor or replacement body from time to time;
"Losses" means losses, liabilities, damages, compensation, awards, payments made under settlement arrangements, claims, proceedings, reasonable costs and other expenses including fines, interest and penalties, whether arising in contract, tort (including negligence), breach of statutory duty or otherwise, legal and other professional fees and expenses;
"Marketplace Agreement" means the agreement between Scientist.com and the Client for the Client to receive the benefit of access to the Platform to request goods and/or services from the Supplier;
"Personal Data Breach" has the meaning set out in the GDPR and, for the avoidance of doubt, includes a breach of clause I6.1.4;
"Personal Data" has the meaning set out in the Data Protection Laws and for the purposes of the Agreement, includes Sensitive Personal Data;
"Policies" means collectively the Platform's Privacy Policy and other Scientist.com policies from time to time (including in relation to Personal Data obtained by Scientist.com from or about individuals located in the European Economic Area and/or Switzerland, and Scientist.com's European Privacy Policy);
"Process", "Processed" and "Processing" has the meaning given to it in the Data Protection Laws;
"Regulator Correspondence" means any correspondence from the Regulator in relation to the Processing of the Service Data;
"Regulator" means any local, national or multinational agency, department, official, parliament, public or statutory person or any government or professional body, regulatory or supervisory authority, board or other body responsible for administering Data Protection Laws, including (where applicable) in the UK, the ICO;
"Restricted Country" means a country, territory or jurisdiction which is not covered by an adequacy determination by a competent authority with jurisdiction over the party who wishes to export the data outside of the EEA and/or the UK (in the case of the latter on and from the date on which the UK formally exits the European Union, in such circumstances whereby the UK is not a member of the EEA);
"Scientist.com Account Data" means the Personal Data of Scientist.com's Employees Processed by the Supplier under, or in connection with, the Agreement, to administer the Supplier's account on the Platform and otherwise as provided for in clause I3.2 (and as may be more particularly described in the Data Protection Particulars);
"Sensitive Personal Data" has the meaning set out in the Data Protection Laws and from 25 May 2018, shall mean the special categories of Personal Data, as described in Article 9 of the GDPR;
"Service Data" means the Personal Data Processed by Scientist.com where Supplier Account Data and/or other Personal Data (excluding always Sensitive Personal Data) provided to Scientist by the Supplier is exchanged on the Platform between the Supplier and a Client (as may be more particularly described in the Data Protection Particulars);
"Supplier Account Data" means the Personal Data of the Supplier's Employees Processed by Scientist.com under, or in connection with, the Agreement, to establish and maintain an account on the Platform and otherwise as provided for in clause I3.2 (and as may be more particularly described in the Data Protection Particulars);
"Third Party Request" means a request from any third party for disclosure of Service Data where compliance with such request is required or purported to be required by Applicable Law.
2.

GENERAL

2.1 This Section I solely relates to the sharing and/or Processing of Personal Data under or in connection with the Agreement, as between Scientist.com and the Supplier. To the extent the Supplier and the Client share and/or Process Personal Data directly between them, (including where Scientist.com provides Service Data to Clients in accordance with this Agreement), the Supplier acknowledges and agrees that it shall agree separate terms in respect of such data sharing/ processing arrangement directly with the Client and Scientist.com shall have no liability in respect of such data sharing/ processing arrangement, including without limitation, the acts or omissions of the Supplier and/or Client.
2.2 It is acknowledged and agreed by the parties that the Agreement relates to the provision of the Platform and the ability for the Client to procure goods/services from Suppliers. The arrangement is a business to business transaction and the Personal Data shared between the parties is of a basic level limited to contact details pertaining to the Account Data and Service Data. Only Account Data and Service Data may be shared by the Supplier with Scientist.com and the Supplier shall ensure no further Personal Data is provided to Scientist.com or to a Client via the Platform.
2.3

This Section I applies where and to the extent that:

2.3.1 the Supplier is a Controller or Processor established in the EEA and/or Switzerland and the Personal Data to be shared and transferred to Scientist.com under and in accordance with this Agreement is Personal Data processed in the context of such establishment; or
2.3.2 the data subject in relation to whom the Supplier shares their Personal Data are data subjects located in the EEA and/or Switzerland and Scientist.com processed such Personal Data for the purpose of such data subjects using the facilities available on the Platform in the EEA and/or Switzerland; or
2.3.3 otherwise either party is subject to the Data Protection Laws in relation to the Processing of Personal Data for the purposes of the performance of its obligations under the Agreement or otherwise for the delivery of the Platform as contemplated and set out in the Agreement.
2.4 This Section I sets out the mandatory legal requirements as contained in the Data Protection Laws to enable the transfer and sharing of the Personal Data between the Supplier and Scientist.com and includes without limitation, the mandatory requirements which apply in relation to the appointment of a data processor as set out in Article 28 of the GDPR, and for the purpose of this Agreement that permit the transfer of data to Scientist.com in the United States of America in compliance with Data Protection Laws.
3.

ARRANGEMENT BETWEEN THE PARTIES

3.1

The parties acknowledge that the factual arrangement between them dictates the classification of each party in respect of the Data Protection Laws. Notwithstanding the foregoing, the parties anticipate that during the term of the Agreement:

3.1.1 the Supplier shall be the Data Controller of the (i) Service Data (ii) Supplier Account Data for its own internal business purposes and (ii) where it is Processed by it in accordance with clause I3.2 Scientist.com Account Data;
3.1.2 Scientist.com shall be the Data Controller of the (i) Scientist.com Account Data for its own internal business purposes and (ii) where it is Processed by it in accordance with clause I3.2 Supplier Account Data; and
3.1.3 Scientist.com shall be the Data Processor in relation to its Processing of the Service Data which have been made available to Scientist.com by the Supplier (whether directly or indirectly) for the purpose of the Supplier providing its goods and/or services to the Client.
3.2

Each party shall Process the other party's Account Data (in its capacity as a Data Controller) in order to:

3.2.1 in the case of Scientist.com to establish, maintain and administer the Supplier's account on the Platform and to provide and market the Platform to the Supplier, including names, email addresses or contact details and any other Personal Data provided in order to complete the supplier registration process or provided in relation to Scientist.com marketing initiatives and to raise invoices and seek payment otherwise administer the Agreement; and
3.2.2 in the case of the Supplier, to contact Scientist.com's representatives to receive the benefit of the Platform and the services available under the Agreement and/or to administer its relationship with Scientist.com in accordance with the Agreement.
3.3 Each party shall Process the other party's Account Data for the purposes set out in clause I3.2 in accordance with that party's relevant privacy policy. Each party may be required to share the other party's Account Data referred to in clause I3.2 with its affiliates and other relevant parties, within or outside the country of origin, in order to carry out the activities specified in clause I3.2, but in doing so, each party will ensure that the sharing and use of the Account Data complies with the applicable Data Protection Laws.
3.4 Scientist.com shall Process the Service Data (in its capacity as a Data Processor) in order to facilitate the relationship between the Client and the Supplier, to enable the Client and the Supplier to receive the benefit of the Platform and the services available.
3.5 Each of the parties acknowledges and agrees that the definition of Data Protection Particulars is an accurate description of the Data Protection Particulars.
3.6 Each party agrees that in performing its obligations under the Agreement, it shall comply with the obligations imposed upon it under the Data Protection Laws (including in the case of the Supplier, when uploading, sharing and receiving data via the Platform with a Client).
4.

DATA SHARING OBLIGATIONS

4.1

Where acting as a Data Controller:

General

4.1.1 for the purposes of the Account Data, each party shall ensure that all fair processing notices have been given (and/or, as applicable, consents obtained) and are sufficient in scope to allow the other party to share its applicable Employees Personal Data with the other party and any relevant Supplier (each of whom may be in a Restricted Country). Each party shall make available to the other a copy of their applicable privacy policy (of which Scientist.com's can be located at backoffice.scientist.com/legal-notices) and the receiving party shall ensure that this policy is provided to the applicable Employees whose Personal Data has been shared with the other party for the purposes set out in the Agreement;
4.1.2 for the purposes of the Service Data, the Supplier shall ensure that all fair processing notices have been given (and/or, as applicable, consents obtained) and are sufficient in scope to allow the Supplier to (a) upload the Service Data to the Platform; (b) upload and share the Service Data to a Restricted Country; and (c) disclose the Service Data to Scientist.com in accordance with the Data Protection Laws and for the purposes set out in the Agreement (including permitting the disclosure of the Service Data to the relevant Client).
4.2 Each party warrants, represents and undertakes that it is not subject to any prohibition or restriction which would prevent or restrict it from disclosing or transferring either Account Data or Service Data (as applicable) to the other party in accordance with the terms of the Agreement.
5.

SUPPLIER OBLIGATIONS

5.1 The Supplier warrants, represents and undertakes to Scientist.com that it will not put any Sensitive Personal Data on the Platform, or include such Sensitive Personal Data within any attachments submitted on the Platform. The Supplier instructs Scientist.com to remove any such Sensitive Personal Data that the Supplier does place on or send via the Platform, that it becomes aware of, although Scientist.com does not have any obligation to the Supplier to check for this or to do so.
6.

DATA PROCESSOR OBLIGATIONS

6.1

To the extent that Scientist.com is acting as a Data Processor in relation to the Processing that it is carrying out arising out of, or in connection with, the performance of its obligations under the Agreement, it shall:

6.1.1 Process Service Data for and on behalf of the Supplier for the purposes of performing its obligations under the Agreement, and only in accordance with the terms of the Agreement and any instructions from the Supplier. For the avoidance of doubt, the Supplier's instructions are deemed to include an instruction to provide relevant Service Data to the Client. If Scientist.com is required by applicable law to act other than in accordance with the instructions of the Supplier, Scientist.com shall (to the extent permitted by applicable law) as soon as possible notify the Supplier;
6.1.2 not otherwise modify, amend or alter the contents of the Service Data unless specifically authorized to do so in writing by the Supplier;
6.1.3 notify the Supplier as soon as practicable if it considers, in its opinion (acting reasonably), that any of the Supplier's instructions under clause I6.1.1 infringes any of the Data Protection Laws;
6.1.4 ensure that appropriate operational and technical measures are in place to safeguard against any unauthorized or unlawful Processing of the Service Data and against accidental loss or destruction of, or damage to, Service Data and where requested provide to the Supplier evidence of its compliance with such requirement;
6.1.5 take all reasonable steps to ensure the reliability and integrity of any of its staff who shall have access to the Service Data and ensure that each member of its staff shall have entered into appropriate contractually-binding confidentiality undertakings;
6.1.6 provided at all times that this clause I6.1.6 is limited to the Account Data and Service Data of the Supplier, allow its data processing facilities, procedures and documentation to be submitted for scrutiny, inspection or audit by the Supplier (and/or its representatives, including its appointed auditors) in order to ascertain compliance with the terms of the Agreement and provide reasonable information, assistance and co-operation to the Supplier, including access to relevant staff and/or, on the request of the Supplier provide the Supplier with written evidence of its compliance with the requirements of the Agreement. Under no circumstances shall any obligation under this clause I6.1.6 permit the Supplier (and/or its representatives, including appointed auditors) to audit or be entitled to information in respect of any third party (including third party marketplaces, Clients or other Suppliers) (as determined by Scientist.com acting in its sole discretion);
6.1.7 subject to clauses I6.1.1 and I6.5 not disclose Service Data to a third party (including a sub-contractor) in any circumstances without the Supplier's prior written consent (not to be unreasonably withheld or delayed). For the avoidance of doubt, by selecting to use the Platform (including without limitation the research concierge service), the Supplier will be deemed to be consenting to the disclosure of Service Data to such Client;
6.1.8 subject to clause I6.2 not Process or otherwise transfer any Service Data to a Restricted Country except with the prior written consent of the Supplier (acting reasonably and in good faith), and in granting consent to the transfer, the Supplier (acting reasonably and in good faith). For the avoidance of doubt, by selecting to use the Platform (including without limitation the research concierge service), the Supplier will be deemed to be consenting to the disclosure of Service Data to such Client in such Restricted Country and shall have obtained the necessary consent from the applicable data subject to pass their data to Scientist.com and the applicable Client in a Restricted Country;
6.1.9

notify the Supplier promptly following its receipt of any Data Subject Request or Regulator Correspondence or Third Party Request, and shall:

6.1.9.1 not disclose any Service Data in response to any Data Subject Request or Regulator Correspondence or Third Party Request without the Supplier's prior written consent; and
6.1.9.2 provide the Supplier promptly at the Supplier's cost with all reasonable co-operation and assistance required by Scientist.com in relation to any such Data Subject Request or Regulator Correspondence or Third Party Request;
6.1.10

notify the Supplier promptly upon becoming aware of any Personal Data Breach, and:

6.1.10.1 implement any measures necessary to restore the security of compromised Service Data; and
6.1.10.2 assist the Supplier to make any notifications to the Regulator and affected Data Subjects;
6.1.11 except to the extent required by applicable law, and/or as required for Scientist.com to perform its surviving obligations and/or for its own internal record keeping and audit purposes, on termination or expiry of the Agreement and/or all SOW's thereunder (as applicable) or otherwise where requested by the Supplier, cease Processing all Service Data and return and/or permanently and securely destroy (as directed in writing by the Supplier) all Service Data and all copies in its possession or control; and
6.1.12

use reasonable endeavours in accordance with good industry practice to assist the Supplier to comply with the obligations imposed on the Supplier by the Data Protection Laws, including:

6.1.12.1

obligations relating to ensuring the security and integrity of the Service Data;

(a) obligations relating to notifications and communication of Personal Data Breaches required by the Data Protection Laws to the Regulator and/or any relevant Data Subjects; and
(b) undertaking any Data Protection Impact Assessments that are required by the Data Protection Laws (and, where required by the Data Protection Laws, consulting with the Regulator in respect of any such Data Protection Impact Assessments).
6.2 The Supplier agrees that (a) in continuing to provide Account Data to Scientist.com and (b) by selecting to engage with a Client in a Restricted Country, the Supplier will be deemed to be consenting to the disclosure of Account Data and Service Data (respectively) to a Restricted Country.
6.3 Transfers of Service Data and Account Data shared with a Client located outside the EEA for the purpose of responding to and delivering a Client's request for services placed on the Platform by the Supplier, shall be subject to the terms put in place between the Client and the Supplier. Expressly Scientist.com shall have no liability for the Processing of such Service Data and Account Data by the Supplier and/or the Client.
6.4

The Supplier expressly agrees that Scientist.com may transfer:

6.4.1 Service Data and Account Data to third-party sub-processors for the purpose of providing technical, operational and administrative support related to the Platform, and will ensure that any onward transfers to sub-processors by such third parties are made in conformity with (a) the terms of this Section I and (b) Scientist.com's commitments under the Data Protection Laws;
6.4.2 Service Data and Account Data to Clients for the purpose of responding to and delivering a Client's request for Services placed on the Platform by the Client and facilitating an order for Services to be made by Client with Supplier. The Supplier acknowledges that the Processing of such Service Data and Account Data by the Client is subject to the terms put in place between the Client and the Supplier. Expressly Scientist.com shall have no liability for the Processing of such Service Data and Account Data by the Supplier and/or the Client.
6.5 Each party shall (at the Supplier's cost) use its reasonable endeavours to assist the other party to comply with any obligations under the Data Protection Laws and shall not perform its obligations under the Agreement in such a way as to cause the other party to breach any of its obligations under the Data Protection Laws to the extent that such party is aware, or ought reasonably to have been aware, that the same would be a breach of such obligations.
6.6 Except as otherwise provided, the Agreement does not transfer ownership of, or create any licences (implied or otherwise), in any intellectual property rights in any Personal Data.
7.

INDEMNITY AND LIABILITY

7.1 Notwithstanding any other term of the Agreement each party shall indemnify (the "Indemnifying Party") and keep indemnified and hold harmless the other (the "Indemnified Party") from and against all Losses suffered or incurred by the Indemnified Party arising out of or in connection with claims and proceedings arising from any breach of the Indemnifying Party's obligations under this Section I.
7.2

Subject to clause I7.8 of these Terms of Use:

7.2.1 the liability of the Supplier under the indemnity set out at clause I7.1 in relation to all Losses incurred by Scientist.com as a result of a breach of the Supplier of Clause I5.1 shall be unlimited;
7.2.2 otherwise each party's total liability under the Agreement (including without limitation) in respect of (I) the indemnity set out at Clause I7.1 and (ii) the payment of compensation under Clause 7.9) shall not exceed the sum of £1,000,000.
7.3 Subject to clause I7.8 of these Terms of Use, to the maximum extent permitted by law, Scientist.com shall have no liability of any nature whatsoever regardless of the cause of action, including breach of contract, breach of warranty, strictly liability or negligence to the Client, Supplier and/or any other third party in relation to (a) Sensitive Personal Data placed on or shared via the Platform by the Client or Supplier, or (b) for any acts or omissions of the Client and/or Supplier in relation to any information placed on or received or shared via the Platform by the Client and/or Supplier (including Personal Data and Sensitive Data and including Service Data provided by Scientist.com to Client in accordance with this Agreement and service data of Client provided to Supplier by Scientist.com via the Platform).
7.4

Subject to clause H7.8 of these Terms of Use, to the maximum extent permitted by law, Scientist.com shall have no liability of any nature whatsoever regardless of the cause of action, including breach of contract, breach of warranty, strictly liability or negligence to the Supplier or any third party for any breach of the Agreement, where such breach is attributable (in whole or part) to an act or omission of the Client, nor shall Scientist.com have any liability of any nature whatsoever to the Supplier or any third party:

7.4.1

for any breach of the Agreement, where:

7.4.1.1 such breach is attributable (in whole or part) to an act or omission of the Supplier;
7.4.1.2 such breach (in whole or part) is attributable to an act or omission of the Client; or
7.4.1.3 such breach arises due to the action of any third party;
7.5 Subject to clause I7.8 of these Terms of Use, neither party shall be liable for consequential, indirect or special losses.
7.6

Subject to clause I7.8 of these Terms of Use, neither party shall be liable for any of the following (whether direct or indirect):

7.6.1 loss of profit;
7.6.2 loss of use;
7.6.3 loss of production;
7.6.4 loss of contract;
7.6.5 loss of opportunity;
7.6.6 loss of savings, discount or rebate (whether actual or anticipated); or
7.6.7 harm to reputation or loss of goodwill.
7.7 Except as expressly stated in this Agreement and subject to clause I7.8 of these Terms of Use, all warranties and conditions whether express or implied by statute, common law or otherwise are excluded to the extent permitted by law.
7.8

Notwithstanding any other provision of this Agreement, the liability of the parties shall not be limited in any way in respect of the following:

7.8.1 death or personal injury caused by negligence;
7.8.2 fraud or fraudulent misrepresentation; and/or
7.8.3 any other losses which cannot be excluded or limited by applicable law.
Data Subject and third party compensation
7.9

To the extent that either party (the "Payor") has an entitlement under Data Protection Laws to claim from the other party compensation paid by the Payor to a Data Subject or third party as a result of a breach of Data Protection Laws (in full or in part) by the other party, the other party shall be liable only for such amount as directly relates to such other party's responsibility for any damage caused to the relevant Data Subject or third party. For the avoidance of doubt the Payor shall only be liable to make payment to the other party under this clause I7.9 upon receipt of evidence from the Payor, which shall be to the other party's reasonable satisfaction and that clearly demonstrates:

7.9.1 that the other party has breached Data Protection Laws;
7.9.2 that such breach contributed (in part or in full) to the harm caused entitling the relevant Data Subject or third party to receive compensation in accordance with Data Protection Laws; and
7.9.3 the proportion of responsibility for the harm caused to the relevant Data Subject or third party which is attributable to the other party.
Mitigation and Conduct of claims
7.10 In respect of any indemnity given by either party (the "Indemnifying Party") under this Section I, the party which receives the benefit of the indemnity (the "Indemnified Party") shall take all reasonable steps so as to reduce or mitigate the loss covered by the indemnity.
7.11 The obligations on the Indemnifying Party under this Section I shall be conditioned upon: (i) the Indemnified Party providing the Indemnifying Party with prompt (but no less than thirty (30) days) written notice of the existence of any claim covered by the indemnity provided however that any delay by an Indemnified Party in giving such notice shall not relieve the Indemnifying Party of its obligations under this Agreement except to the extent that such delay materially impairs or causes prejudice to the Indemnifying party; and (ii) the Indemnified Party cooperating as reasonably requested with the Indemnifying Party, at the sole cost and expense of the Indemnifying Party, in the defence of any claim. The Indemnified Party shall not accept any settlement which imposes liability not covered by the indemnities under this Section H or place restrictions on the Indemnifying Party without the prior written consent of the Indemnifying Party. Nothing in this Clause shall limit or prohibit a party from dealing with any claim or proceeding issued by a Regulator and the parties agree that each party shall have the right to defend and deal with any Regulator claims directly, but shall take into account, acting reasonably the requests of the Indemnifying Party.
7.12 Each party shall take all reasonable steps so as to reduce or mitigate any compensation due to a Data Subject or third party, arising from a breach of this Section I.
8.

GOVERNING LAW AND EXECUTION

8.1

The validity and interpretation of these Terms of Use shall be:

8.1.1

for the purpose of Processing Personal Data shall mean the Data Protection Laws applicable to the Controller being:

8.1.1.1 in the case of Scientist.com the laws of the State of Delaware, USA and the federal and state courts of the State of Delaware, USA shall be the exclusive venue for the resolution of any disputes relating hereto;
8.1.1.2 in the case of the Supplier the laws of the EEA Member State in which the Controller is established;
8.1.2 for all other purposes, governed by the laws of the State of Delaware, USA and the federal and state courts of the State of Delaware, USA, shall be the exclusive venue for the resolution of any disputes relating hereto.

J.

General Conditions

1. You understand that Scientist.com uses third party suppliers and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
2. The failure of Scientist.com to exercise or enforce any right or provision of the Terms of Use shall not constitute a waiver of such right or provision.
3. Save as specifically stated elsewhere in this Terms of Use, you agree that the laws of the State of Delaware, without regard to principles of conflict of laws, will govern these Terms of Service and any dispute of any sort that might arise between you and Scientist.com.
4. Scientist.com reserves the right to make changes to these Terms of Use at any time. If any of these conditions shall be deemed invalid, void, or for any reason unenforceable, that condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition.

K.

Ethical Standards

Supplier will perform this Agreement and the Services and operate its business in compliance with the high ethical standards described in Scientist.com's Global Compliance Standard, and incorporated herein by reference and as amended from time to time, in particular those principles related to "Anti-Bribery and Anti-Corruption" practices and any additional codes of practice or standards specified in the applicable SOW. Supplier will not: (a) take any action that will cause Client or Scientist to be in breach of any applicable laws for the prevention of fraud, bribery, corruption, racketeering, money laundering or terrorism, including the US Foreign Corrupt Practices Act and the UK Bribery Act, and/or (b) offer, pay, request or accept any bribe, inducement, kickback or facilitation payment, and shall not make or cause another to make any offer or payment to any individual or entity for the purpose of influencing a decision for Scientist.com's or Client's benefit. Any material breach or violation by Supplier of these representations, warranties and undertakings shall give Scientist.com the right to terminate this Agreement with immediate effect and be relieved of any obligations relating to the Agreement.

Our Address:

Scientist.com
329 S Highway 101
Suite 230
Solana Beach,
CA 92075
USA

ANNEX 1
PRE-SOW MUTUAL NON-DISCLOSURE AGREEMENT BETWEEN CLIENT AND SUPPLIER

Preamble:

THIS PRE-SOW MUTUAL NON-DISCLOSURE AGREEMENT ("Agreement") is made effective between Client and Supplier as set forth below for the purpose of assuring the protection and preservation of the confidential and/or proprietary nature of information to be made available pre-SOW by or on behalf of each Party to the other in connection with discussions or negotiations regarding a Request for Proposal and considering and discussing whether the Parties wish to enter into an SOW in relation thereto and the terms and content of such SOW (a "Business Relationship"). Intending to be legally bound and in consideration of the mutual promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged and agreed by Parties, the Parties hereby agree as follows:

Capitalized terms in this Agreement have the same meanings set forth in the Supplier Agreement (defined below) unless specified otherwise or the context requires otherwise.

Unless notified to the Supplier via the Platform, for each Request for Proposal that exists on 1 November 2020 and for which no associated SOW has been issued before that date ("Live Requests"), and for all new Requests for Proposal that are submitted to a Supplier on and from that date ("New Requests"), the Client legal entity to which such Request for Proposal relates (the "Client") automatically enters into this Agreement directly with the Supplier legal entity to which such request is submitted ("Supplier"). The Client shall enter into this Agreement with relevant Supplier by the following actions: i) in relation to each Live Request, by continuing the associated Request for Proposal where such Request for Proposal is not terminated by 1 November, 2020; and ii) in relation to each New Request, by using the Platform to submit such request on and from 1 November 2020.

The Supplier automatically enters into this Agreement directly with the relevant Client: i) for each Live Request by continuing the associated Request for Proposal where such Request for Proposal is not terminated by 1 November 2020; and ii) for each New Request submitted to the Supplier on and from that date, by using the Platform to be able to receive such request on and form that date.

Client and Supplier are referred to herein as the "Parties" and individually Client and Supplier are each a "Party."

The Parties expressly agree that this Agreement is validly entered into and becomes binding upon them both as set forth above. Notwithstanding any other provision of this Agreement, even if a Court were to find that the method of entering into this Agreement is not valid to create a directly binding agreement between the Parties on the terms set forth herein, both Parties have consented to entering into this Agreement in the manner set forth above and have waived their respective rights to claim otherwise. This paragraph shall not however apply where the Client in question is any member of the NIH. "NIH" means the USA National Institutes of Health.

"Supplier Agreement" means the relevant service specific supplier agreement between The Assay Depot Inc., ("Scientist.com") and Supplier, the terms of which will be incorporated into any SOW resulting from the Request for Proposal in question.

1.

Confidential Information.

(i)

"Confidential Information" means Client Confidential Information and/or Supplier Confidential Information (as the context requires).
(ii)

"Client Confidential Information" means all data and information disclosed pre-SOW to the Supplier or its Representatives by or on behalf of the Client relating to the Request for Proposal in question (no matter in which form, including without limitation via Platform messages, teleconferences, phone calls, face-to-face meetings and emails, regardless of whether or not an SOW is created in relation to the Request for Proposal in question), including Client Materials, Client Property, the actual Request for Proposal and the fact it has been issued and is being discussed between Client and Supplier.
(iii)

"Supplier Confidential Information" means: i) pricing information; and ii) other information marked by Supplier as being confidential; in each case disclosed pre-SOW to the Client or its Representatives by or on behalf of the Supplier relating to the Request for Proposal in question.
(iv)

"Representatives" means the Affiliates of a Party, along with that Party's and its Affiliates respective officers, directors, employees, contractors, consultants or agents.

2.

Exceptions.

Confidential Information of a disclosing Party ("Disclosing Party") shall not include information that the other Party (the "Receiving Party") can demonstrate by competent proof: (a) is now, or hereafter becomes, through no breach of this Agreement by the Receiving Party or its Representatives, publicly known or available; (b) is known by the Receiving Party or its Representatives at the time of receiving such information from the Disclosing Party or its Representatives without obligation of confidentiality and/or non use and from a third Party freely entitled to disclose the same, as evidenced by its pre existing written records; (c) is hereafter furnished to the Receiving Party by a third party, as a matter of right and without restriction on disclosure; or (d) is hereafter independently developed by the Receiving Party or its Representatives without reference to, use of or reliance upon Confidential Information of the Disclosing Party and without any breach of this Agreement, as evidenced by contemporaneous written records of Receiving Party or its Representatives. No combination of elements within the Confidential Information shall be deemed to be part of the above exceptions merely because the individual elements of such combination are part of such exceptions, unless the entire combination itself, or the entire principle of use or operation of such combination (if any), is within such exceptions. In addition, no element within the Confidential Information shall be deemed to be a part of the above exceptions merely because it is embraced by more general information or data that is part of above exceptions.

3.

Non-Disclosure and Non-Use Obligations.

The Receiving Party shall maintain all Confidential Information of the Disclosing Party in trust and confidence using the same methods of protection and care it uses to protect its own confidential information of a similar nature and which in any event, shall never be less than a reasonable degree of care or methods and shall not disclose any Confidential Information to any third party save as specifically authorized by this Agreement. The Receiving Party may use Confidential Information solely to: 1) consider the Request for Proposal and/or responses thereto (as applicable); 2) evaluate the Receiving Party's interest in pursuing a Business Relationship with the Disclosing Party; 3) discussing the Request for Proposal and responses with the Disclosing Party and/or preparing or negotiating the SOW relating to the Request for Proposal with the Disclosing Party (the "Authorized Purpose"), and for no other purpose. The Receiving Party shall not use Confidential Information for any purpose or in any manner that would constitute a violation of any applicable laws or regulations. The Receiving Party shall only permit access to Confidential Information to those of the Receiving Party's Representatives who (a) have a need to know such information for the Authorized Purpose, (b) have been advised by the Receiving Party of the Receiving Party's obligations under this Agreement, and (c) are contractually or legally bound by obligations of non disclosure and non use at least as stringent as those contained herein. The failure of any Representative of the Receiving Party to comply with the terms and conditions of this Agreement shall be considered a breach of this Agreement by the Receiving Party. The Receiving Party shall promptly notify the Disclosing Party in the event of any loss, unauthorized disclosure or unauthorized use of, or any inability to account for, any Confidential Information of the Disclosing Party.

4.

Authorized Disclosure.

Notwithstanding the provisions of Section 3, the Receiving Party may disclose Confidential Information, without violating its obligations under this Agreement, to the extent the disclosure is required by a valid order of a court or other governmental body of competent jurisdiction or is otherwise required by law or regulation, provided that, to the extent allowable under applicable laws and regulations, the Receiving Party shall give reasonable prior written notice to the Disclosing Party of such required disclosure and, to the extent allowable under applicable laws and regulations, at the Disclosing Party's request and expense, shall cooperate with the Disclosing Party's efforts to contest such requirement, to obtain a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued or the law or regulation required, and/or to obtain other confidential treatment of such Confidential Information. Any Confidential Information disclosed under this Section 4 remains confidential unless and until it falls under one of the exceptions specified in Section 2 as (a) through (d). Further, where the Receiving Party is obliged by law or regulation to disclose Confidential Information of the Disclosing Party, it shall do so only to the extent to which it is obliged.

2.

Exceptions.

Confidential Information of a disclosing Party ("Disclosing Party") shall not include information that the other Party (the "Receiving Party") can demonstrate by competent proof: (a) is now, or hereafter becomes, through no breach of this Agreement by the Receiving Party or its Representatives, publicly known or available; (b) is known by the Receiving Party or its Representatives at the time of receiving such information from the Disclosing Party or its Representatives without obligation of confidentiality and/or non use and from a third Party freely entitled to disclose the same, as evidenced by its pre existing written records; (c) is hereafter furnished to the Receiving Party by a third party, as a matter of right and without restriction on disclosure; or (d) is hereafter independently developed by the Receiving Party or its Representatives without reference to, use of or reliance upon Confidential Information of the Disclosing Party and without any breach of this Agreement, as evidenced by contemporaneous written records of Receiving Party or its Representatives. No combination of elements within the Confidential Information shall be deemed to be part of the above exceptions merely because the individual elements of such combination are part of such exceptions, unless the entire combination itself, or the entire principle of use or operation of such combination (if any), is within such exceptions. In addition, no element within the Confidential Information shall be deemed to be a part of the above exceptions merely because it is embraced by more general information or data that is part of above exceptions.

5.

Copies.

Confidential Information shall not be reproduced by the Receiving Party or its Representatives in any form except as required to accomplish the Authorized Purpose. Confidential Information (including all copies thereof) shall be and remain the Confidential Information of the Disclosing Party, the property of the Disclosing Party and shall contain any and all confidential or proprietary notices or legends which appear on the original. Upon the Disclosing Party's request, the Receiving Party shall return to the Disclosing Party or destroy (and certify in writing the destruction of, if the Disclosing Party requests) all Confidential Information (including all copies, records and other embodiments thereof, in any medium) in the Receiving Party's possession; provided, however, that the Receiving Party may retain a single copy of the Confidential Information for the sole purpose of monitoring compliance with its continuing obligations hereunder. Further, Receiving Party is under no obligation to destroy or return: i) Confidential Information electronically exchanged via and stored on the Platform; ii) copies of Confidential information which must be retained by Receiving Party according to the provisions of mandatory applicable law; and iii) copies of Confidential Information electronically exchanged and made as a matter of routine information technology back up to the same extent and in the same manner as other electronic information received by the Receiving Party. The obligations of confidentiality and non-use set forth in this Agreement shall however continue to apply to such retained copies notwithstanding termination or expiry of this Agreement.

6.

No other obligation; No License.

This Agreement shall not be construed, by implication or otherwise, as an obligation to enter into any further agreement or SOW relating to the Confidential Information or as the grant of a license or other ownership rights other than to use the Confidential Information for the Authorized Purpose as set forth in this Agreement. Confidential Information disclosed pursuant to this Agreement, as well as any right which could result from such Confidential information, remains the exclusive property of the Disclosing Party.

7.

No Representation or Warranty.

The Confidential Information is provided "as is." The Disclosing Party makes no representations or warranties either express or implied with respect to the Confidential Information and specifically disclaims any implied warranty of non-infringement or merchantability, satisfactory quality or fitness for purpose. Neither the Disclosing Party nor any of the Disclosing Party's Representatives shall have any liability to the Receiving Party or any of the Receiving Party's Representatives resulting from the Receiving Party's or its Representatives' receipt or use of Confidential Information.

8.

Term.

This Agreement applies to all disclosures made for the Authorized Purpose and will become effective and binding upon the Parties as set forth above. Where the Client is not a member of the NIH, the provisions of the Preamble, Sections 1, 2, 3, 4 and 5 shall survive for seven (7) years after the date of disclosure of the respective Confidential Information, and Sections 6 – 18 (inclusive) of this Agreement, including the Parties' respective rights and obligations thereunder, shall survive indefinitely. Where the Client is a member of the NIH, the provisions of the Preamble, Sections 1, 2, 3, 4 and 5 shall survive for five (5) years after the date of disclosure of the respective Confidential Information, and Sections 6 – 18 (inclusive) of this Agreement, including the Parties' respective rights and obligations thereunder, shall survive indefinitely.

9.

Entire Agreement.

Subject to Section 10, this Agreement and the relevant Supplier Agreement constitute the final, complete and exclusive agreement between the Parties with respect to the subject matter hereof, and supersede all other prior and contemporaneous agreements, representations and understandings of the Parties with respect to such subject matter. In the event of a conflict between this Agreement and the relevant Supplier Agreement in relation to disclosures made by or on behalf of the Disclosing Party relating to the Authorized Purpose, the terms of this Agreement prevail. This Agreement may not be amended except by a writing signed by both Parties hereto.

10.

Direct NDA.

Where the Client and Supplier have entered into a valid and subsisting direct agreement off Platform containing obligations between them in relation to Confidential Information governed by this Agreement ("Direct NDA"), in the event of a conflict between such Direct NDA and this Agreement, the Direct NDA shall prevail. For clarity, where this Agreement contains any provision which does not appear in the Direct NDA, silence in the Direct NDA shall prevail.

11.

Non-Waiver.

The waiver from time to time by a Party of any of its rights or its failure to exercise any right or remedy shall not operate or be construed as a continuing waiver of same or of any other of such Party's rights or remedies provided in this Agreement. No waiver by a Party of a particular provision, right or remedy shall be effective unless in writing and signed by such Party.

12.

Governing Law.

Where the Client is not a member of the NIH, this Agreement shall be governed by and construed in accordance with the laws of the location of the non-breaching Party, without regard to its conflicts of laws principles. Excepting injunctive or equitable relief which may be available to the Parties under Section 13, all disputes arising out of or in connection with this Agreement shall be settled by the courts of the non-breaching Party, which shall be the exclusive venue for the resolution of such disputes. Each Party hereby consents to the personal and exclusive jurisdiction and venue of these courts.

Where the Client is a member of the NIH, this Agreement shall be governed by and construed in accordance with US federal law as applied by the US federal courts in the jurisdiction of the non-breaching Party or the US federal court in the District of Columbia. In the event of a conflict between the US federal court of the non-breaching Party and the US federal court in the district of Columbia, the US federal court in the District of Columbia will prevail. Excepting injunctive or equitable relief which may be available to the Parties under Section 14, all disputes arising out of or in connection with this Agreement shall be settled by the US federal courts of the non-breaching Party, which shall be the exclusive venue for the resolution of such disputes.

13.

Injunctive Relief.

Each Party hereby acknowledges and agrees that in the event of any breach of this Agreement by such Party or its Representatives, including, without limitation, the actual or threatened disclosure or unauthorized use of Confidential Information of the other Party or its Representatives without the prior express written consent of the other Party, the other Party may suffer an irreparable injury such that no remedy at law would adequately protect or appropriately compensate the other Party for such injury. Accordingly, each Party agrees that the other Party shall have the right to seek to enforce this Agreement and any of its provisions by injunction, specific performance or other equitable relief, without bond and without prejudice to any other rights and remedies that the other Party may have for a breach of this Agreement.

14.

Severability.

If any provision of this Agreement is found by a court or other governmental authority of competent jurisdiction to be unenforceable or invalid, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole and in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such unenforceable or invalid provision within the limits of applicable law.

15.

Successors and Assigns.

The Parties' rights and obligations under this Agreement will bind and inure to the benefit of their respective successors and permitted assigns. Neither Party shall assign or delegate its obligations under this Agreement, either in whole or in part, without the prior written consent of the other Party (which shall not be unreasonably withheld or delayed).

16.

Notice.

Any notice permitted or required to be given under this Agreement shall be in writing and shall be delivered by personal delivery, by any method of mail (postage prepaid) requiring return receipt, by overnight courier, to the Party to be notified at its registered office address (or head office address where such Party does not have a registered office), F.A.O. legal department or at any address such Party has subsequently designated by written notice to the other. Notice shall be deemed sufficiently given for all purposes upon the date of actual receipt.

17.

Interpretation.

The headings preceding the text of the sections of this Agreement are inserted solely for convenience and ease of reference only and shall not constitute any part of this Agreement, or have any effect on its interpretation or construction. This Agreement has been prepared in the English language and the English language shall control its interpretation. In addition, all notices required or permitted to be given hereunder, and all written, electronic, oral or other communications between the Parties regarding this Agreement shall be in the English language.

18.

No publicity.

Subject to Section 4, the Parties shall not directly or indirectly cause or permit i) the oral or public release of any public statement referring to the existence of discussions between the Parties regarding the Business Purpose, save to the extent required by law, or ii) any use of the other Party's name, logo, or trademarks, without the other Party's prior written consent.