Contract analysis

ARTICLE I — DEFINITIONS As used in this Agreement, the following terms shall have the meanings set forth below:

Section 1.1 "APA" means that certain Asset Purchase Agreement, dated as of May 11, 2023, by and between Service Provider and Service Recipient, as may be amended, restated, supplemented, or otherwise modified from time to time in accordance with its terms.

Section 1.2 "Business Day" means any day other than a Saturday, Sunday, or any day on which banks in San Diego, California or Durham, North Carolina are authorized or required by applicable law to be closed.

Section 1.3 "Closing Date" means August 8, 2023.

Section 1.4 "Facilities" means, collectively, (a) the OncuPath reference laboratory and research and development facility located at 4820 Towne Centre Drive, Suite 200, San Diego, California 92121 and (b) the manufacturing and kitting space located at 925 Industrial Court, Carlsbad, California 92010.

Section 1.5 "Force Majeure Event" has the meaning set forth in Section 9.4 of this Agreement.

Section 1.6 "Maximum Service Period" means the period of nine (9) months following the Closing Date, expiring on and including May 8, 2024.

Section 1.7 "OncuPath Business" has the meaning ascribed to such term in the APA.

Section 1.8 "Schedule A" means Schedule A attached hereto and incorporated herein by reference, as may be amended from time to time in accordance with the terms of this Agreement.

Section 1.9 "Service Charges" means the fees payable by Service Recipient to Service Provider for the Services, calculated at Service Provider's actual, documented cost of providing such Services plus a markup of five percent (5%) (i.e., cost plus 5%), as more particularly described in Article III.

Section 1.10 "Service Commencement Date" means August 8, 2023, which is the Closing Date.

Section 1.11 "Service Level" means, with respect to each Service, the standard of service described in Section 2.3 and the applicable portions of Schedule A.

Section 1.12 "Service Period" means, with respect to each Service, the period commencing on the Service Commencement Date and ending on the earliest to occur of (a) the expiration of the maximum term set forth for such Service on Schedule A, (b) the date on which such Service is terminated in accordance with Article VI, and (c) the last day of the Maximum Service Period.

Section 1.13 "Services" means the transition services described on Schedule A, together with any additional services added to Schedule A pursuant to Section 2.4, in each case as provided by or on behalf of Service Provider to Service Recipient during the applicable Service Period.

Section 1.14 "Third-Party Costs" means all fees, expenses, and charges payable to third-party vendors, contractors, service providers, or licensors that are incurred by Service Provider directly in connection with the delivery of Services hereunder.

Section 1.15 "Transferred Employees" means the seventy-eight (78) former employees of Service Provider who accepted offers of employment from Service Recipient and transferred to Service Recipient's employment in connection with the transactions contemplated by the APA, as identified on Schedule 7.5(a) of the APA.

Section 1.16 "Transition Services Coordinator" means, with respect to each Party, the individual designated by such Party in accordance with Section 2.1 to serve as the primary point of contact for all matters relating to the provision and receipt of Services under this Agreement.

Section 2.1 — Provision of Services. (a) Commencing on the Service Commencement Date and continuing during each applicable Service Period, Service Provider shall provide, or cause to be provided, to Service Recipient the Services described on Schedule A attached hereto. The Services shall be provided in accordance with the terms and conditions of this Agreement and in a professional and workmanlike manner. Service Pr

Section 2.2 — Standard of Service. (a) Service Provider shall perform the Services in a manner substantially consistent with the nature, quality, and timeliness of the same or similar services as were provided to or in support of the OncuPath Business by Service Provider during the twelve (12) months immediately preceding the Closing Date. Service Provider shall not, without the prior written consent of Service Recip

Section 2.3 — Service Levels. (a) The Service Levels for each category of Service are as specified on Schedule A and as further set forth in this Section 2.3. Service Provider shall use commercially reasonable efforts to meet or exceed the applicable Service Levels for each Service throughout the applicable Service Period. (b) Information Technology Services. With respect to the information technology Services descri

Section 2.4 — Additional Services. (a) From time to time during the term of this Agreement, Service Recipient may request that Service Provider provide additional transition services not listed on Schedule A by delivering a written request to Service Provider's Transition Services Coordinator. Each such request shall describe in reasonable detail the nature and scope of the additional services requested, the proposed

Section 2.5 — Exclusions. Notwithstanding any other provision of this Agreement, Service Provider shall not be obligated to provide any Service (or any portion thereof) that would: (a) violate any applicable law, statute, regulation, rule, order, or governmental directive, including any requirements under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), the Health Information Technology for

ARTICLE III — SERVICE CHARGES AND PAYMENT

Section 3.1 — Service Charges. (a) In consideration for the provision of the Services, Service Recipient shall pay to Service Provider the Service Charges for all Services provided hereunder. The Service Charges for each Service shall be calculated at Service Provider's actual, documented cost of providing the applicable Service, plus a markup of five percent (5%). (b) For purposes of calculating Service Charges, "ac

Section 3.2 — Invoicing. (a) Service Provider shall deliver to Service Recipient monthly invoices for Service Charges within fifteen (15) days following the end of each calendar month during the Service Period (or any portion thereof during which Services are provided). Each invoice shall cover the Service Charges accrued during the immediately preceding calendar month. (b) Each invoice shall contain reasonable suppo

Section 3.3 — Payment Terms. (a) Service Recipient shall pay all undisputed amounts set forth on each invoice within thirty (30) days following Service Recipient's receipt of the applicable invoice. All payments shall be made by wire transfer of immediately available funds to an account designated by Service Provider in writing. (b) Any undisputed amounts not paid when due shall accrue interest from the date such pay

Section 3.4 — Taxes. (a) All Service Charges set forth in this Agreement are exclusive of all applicable sales, use, value-added, goods and services, excise, and similar transaction taxes (collectively, "Transaction Taxes"). Service Recipient shall be responsible for and shall pay all Transaction Taxes imposed on or with respect to the Services provided hereunder, to the extent applicable. (b) Service Provider shall

ARTICLE IV — PERSONNEL AND RESOURCES

Section 4.1 — Service Provider Personnel. (a) Service Provider shall make available qualified personnel with sufficient skill, training, and experience to perform the Services in accordance with the terms of this Agreement and the applicable Service Levels. Service Provider shall retain sole and exclusive discretion over the selection, assignment, supervision, compensation, and direction of individual personnel assig

Section 4.2 — Cooperation. (a) Each Party shall designate a Transition Services Coordinator in accordance with Section 2.1(d) and shall provide such other personnel and resources as are reasonably necessary to facilitate the orderly transition of the OncuPath Business and the provision and receipt of Services hereunder. (b) Service Recipient shall provide Service Provider with reasonable and timely access to the Faci

Section 4.3 — Key Transferring Personnel. (a) The Parties acknowledge and agree that certain key personnel who were instrumental in the operation of the OncuPath Business, including Dr. Lara Okonkwo (Vice President, OncuPath Research and Development), Samuel Briggs (Director, OncuPath Commercial Operations), and Yuki Tanabe (Head of Regulatory Affairs, OncuPath), have transferred to the employment of Service Recipien

ARTICLE V — CONFIDENTIALITY AND DATA PROTECTION

Section 5.1 — Confidential Information. (a) Each Party (the "Receiving Party") shall maintain the confidentiality of all confidential and proprietary information of the other Party (the "Disclosing Party") that is received, accessed, or otherwise obtained in connection with the performance or receipt of Services under this Agreement, in accordance with the confidentiality provisions set forth in Article IX of the APA

Section 5.2 — Data Security. (a) Service Provider shall maintain data security measures, policies, and procedures at a level at least consistent with those that were in effect with respect to the OncuPath Business during the twelve (12) months immediately preceding the Closing Date. Such measures shall include, without limitation, access controls, encryption of data in transit and at rest, network security monitoring

Section 5.3 — Regulatory Compliance. (a) Each Party shall comply with all applicable federal, state, and local laws, rules, and regulations in connection with its performance of its obligations and exercise of its rights under this Agreement, including, to the extent applicable to the Services involving protected health information ("PHI") as defined under HIPAA, the requirements of HIPAA, HITECH, and the regulations

ARTICLE VI — TERM AND TERMINATION

Section 6.1 — Term. This Agreement shall be effective as of the Closing Date and shall remain in full force and effect until the earlier of (a) the expiration of the Maximum Service Period (May 8, 2024, being nine (9) months after the Closing Date) and (b) the date on which all Services have been terminated in accordance with this Article VI or have expired in accordance with their respective individual Service Perio

Section 6.2 — Early Termination by Service Recipient. (a) Service Recipient may terminate any individual Service, in whole or in part, upon not less than thirty (30) days' prior written notice to Service Provider, which notice shall specify the Service(s) to be terminated and the effective date of such termination. For the avoidance of doubt, the termination of any individual Service shall not affect the continued pr

Section 6.3 — Termination by Service Provider. (a) Service Provider may terminate any individual Service or this Agreement in its entirety upon sixty (60) days' prior written notice to Service Recipient if Service Recipient fails to pay undisputed Service Charges within thirty (30) days after the applicable due date, and such failure continues unremedied for a period of fifteen (15) days after Service Provider delive

Section 6.4 — Termination for Cause. Either Party may terminate this Agreement immediately upon written notice to the other Party if: (a) the other Party (i) commences a voluntary case or proceeding under any applicable federal or state bankruptcy, insolvency, reorganization, or similar law, (ii) becomes the subject of an involuntary case or proceeding under any such law that is not dismissed within sixty (60) days,

Section 6.5 — Effect of Termination. (a) Upon the termination or expiration of any Service (whether through expiration of the applicable Service Period, early termination, or termination for cause), Service Provider shall cooperate in good faith with Service Recipient to effect an orderly transition of such Service to Service Recipient or to a third-party service provider designated by Service Recipient. Such transit

ARTICLE VII — LIMITATION OF LIABILITY

Section 7.1 — Limitation of Liability of Service Provider. (a) SERVICE PROVIDER'S AGGREGATE LIABILITY TO SERVICE RECIPIENT UNDER THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL AMOUNT OF SERVICE CHARGES ACTUALLY PAID OR PAYABLE BY SERVICE RECIPIENT TO SERVICE PROVIDER UNDER THIS AGREEMENT. (b) IN NO EVENT SHALL EITHER PARTY BE LIABLE

Section 7.2 — Standard of Care. Service Provider shall not be liable for any failure to perform the Services, or any degradation in the Service Levels, to the extent such failure or degradation is caused by or attributable to: (a) acts or omissions of Service Recipient, its employees, agents, contractors, or representatives, including the failure of Service Recipient to perform its cooperation obligations under Secti

Section 7.3 — Sole Remedy. Except in cases of Service Provider's fraud or willful misconduct, the remedies set forth in this Agreement (including the right to terminate Services, withhold disputed payments, and seek indemnification in accordance with Article VIII) shall constitute Service Recipient's sole and exclusive remedies for any failure by Service Provider to perform the Services in accordance with this Agreem

ARTICLE VIII — INDEMNIFICATION

Section 8.1 — Indemnification by Service Provider. Service Provider shall indemnify, defend, and hold harmless Service Recipient and its directors, officers, employees, agents, successors, and permitted assigns (collectively, the "Service Recipient Indemnified Parties") from and against any and all third-party claims, actions, suits, proceedings, losses, damages, liabilities, judgments, settlements, penalties, fines,

Section 8.2 — Indemnification by Service Recipient. Service Recipient shall indemnify, defend, and hold harmless Service Provider and its directors, officers, employees, agents, successors, and permitted assigns (collectively, the "Service Provider Indemnified Parties") from and against any and all Losses arising out of or resulting from: (a) Service Recipient's use of the Services in violation of applicable law; (b)

Section 8.3 — Indemnification Procedures. (a) Notice of Claim. The Party seeking indemnification (the "Indemnified Party") shall provide prompt written notice to the Party from whom indemnification is sought (the "Indemnifying Party") of any claim, action, suit, or proceeding for which indemnification is sought under this Article VIII (each, a "Claim"), describing in reasonable detail the nature of the Claim, the fac

ARTICLE IX — GENERAL PROVISIONS

Section 9.1 — Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law provisions or rules (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.

Section 9.2 — Dispute Resolution. (a) Informal Resolution. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity thereof (each, a "Dispute"), shall first be referred to the Transition Services Coordinators of the respective Parties for resolution. The Transition Services Coordinators shall meet (in person or by videoconference) within five (5) Busin

Section 9.3 — Notices. All notices, requests, consents, claims, demands, waivers, and other communications required or permitted under this Agreement (each, a "Notice") shall be in writing and shall be deemed to have been duly given, made, and received when delivered in accordance with the notice provisions set forth in Section 11.1 of the APA to the following addresses (or to such other address as may be designated

Section 9.4 — Force Majeure. (a) Neither Party shall be liable for any failure or delay in the performance of any obligation under this Agreement (other than any obligation to make payments) to the extent such failure or delay is caused by or results from events or circumstances beyond the reasonable control of the affected Party (each, a "Force Majeure Event"), including natural disasters (earthquakes, floods, hurri

Section 9.5 — Independent Contractor Relationship. The relationship between Service Provider and Service Recipient under this Agreement is that of independent contractor and customer. Nothing in this Agreement shall be construed to create or imply any employer-employee relationship, partnership, joint venture, agency, or fiduciary relationship between the Parties. Neither Party shall have the authority to bind the ot

Section 9.6 — Assignment. (a) Neither Party may assign, transfer, delegate, or otherwise dispose of this Agreement, or any of its rights or obligations hereunder, without the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. (b) Notwithstanding Section 9.6(a), either Party may, without the prior consent of the other Party but upon prior written notice

Section 9.7 — Amendment and Waiver. (a) This Agreement may not be amended, modified, or supplemented except by a written instrument duly executed by authorized representatives of both Parties. (b) No waiver of any provision of this Agreement, or of any right or remedy hereunder, shall be effective unless set forth in a written instrument signed by the Party granting such waiver. No failure or delay by either Party in

Section 9.8 — Entire Agreement. This Agreement, together with Schedule A and any amendments hereto, the APA, and the other Transaction Documents (as defined in the APA), constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior and contemporaneous agreements, negotiations, understandings, representations, and warranties, whether oral or written, relating to

Section 9.9 — Severability. If any provision of this Agreement is held by a court of competent jurisdiction or arbitral tribunal to be invalid, illegal, void, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby, and the Parties shall negotiate in good faith to replace such invalid, illegal, void,