Exclusive Probe Access Terms and Conditions 

1. RNAscope and BaseScope are proprietary in situ nucleic acid detection technologies of Advanced Cell Diagnostics, Inc. (“ACD”), and all related oligonucleotide probes, including those designed by ACD for Customer, are solely owned by ACD. For clarity, ACD’s ownership does not include Customer’s target sequence provided to ACD (“Target Sequence”) for design of an exclusive oligonucleotide probe (“EP”). Customer represents and warrants that the Target Sequence is confidential and proprietary to Customer. Subject to the terms described below, ACD reserves the right to market, sell and use RNAscope and BaseScope probes, including without limitation all EPs, as part of its product & service offerings.  

2. ACD shall (i) maintain the Target Sequence in confidence, (ii) not disclose the Target Seqence to any third party without Customer’s prior written consent, and (iii) use the Target Sequence solely for the purpose of probe design by ACD for Customer (“Purpose”). ACD shall use at least the same standard of care (but no less than reasonable care) to protect the Target Sequence as it uses to protect its own confidential information of a similar nature. ACD may disclose the Target Sequence only to such of its employees, consultants, contractors, and agents (collectively, “Representatives”) who have a need to have access to the Target Sequence for the Purpose, and ACD shall be responsible for the compliance of its Representatives with the obligations herein. If ACD becomes legally required to disclose the Target Sequence by applicable law, court order from a court of competent jurisdiction, or by a regulatory body with the applicable legal authority to compel such disclosure, ACD shall, to the extent permitted by applicable law, provide Customer with prompt written notice to allow Customer to seek a protective order or other restriction, and any such compelled disclosure shall not change the confidential nature of the Target Sequence.  

3. Until the Target Sequence becomes publicly available (other than through breach of ACD’s responsibilities under Section 2 above) or Customer publicly discloses identifiable information about the corresponding EP (i) ACD shall keep confidential and not disclose the name or sequence of the corresponding EP in ACD’s product catalog, on its website, or to any third party, and (ii) subject to Section 4, ACD shall not sell or make available the corresponding EP to any third party without the prior written approval of Customer. 

4. Notwithstanding anything to the contrary herein, if a similar or the same target sequence is independently submitted by another customer for probe design, ACD shall be permitted to discuss with, make and sell a probe to such customer, and may publicly discuss such probe and its target sequence provided that ACD does not use any information provided by Customer to ACD for such purpose and ACD shall not disclose to such other customer any information provided by Customer to ACD. 

5. These Exclusive Probe Access Terms and Conditions (“Terms and Conditions”) constitute the entire agreement between Customer and ACD and is the final statement of the terms of the agreement, superseding all prior written and oral agreements, understandings and undertakings with respect to the Target Sequence and corresponding EP and any of Customer’s additional or different terms and conditions, which are hereby rejected and shall be void. Customer’s submission of a purchase order or other instrument for the purchase of the EP shall be deemed acceptance of Customer’s agreement to these Terms and Conditions, and acknowledgement of ACD’s rejection of any terms and conditions of Customer which is hereby given.  

6. The waiver of any provision or any breach thereof shall not affect any other provision of these Terms and Conditions. To the extent permitted by applicable law, these Terms and Conditions shall be governed by the laws of New York, without regard to conflict of law provisions. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to these Terms and Conditions. In the event that any provision of these Terms and Conditions or portion thereof is found to be illegal or unenforceable, the remaining provisions of these Terms and Conditions shall remain in full force and effect.