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.

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.

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.

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.

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.

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.

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.

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.

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.

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.