Payment terms are net thirty (30) days with a credit limit to be determined by DIADEXUS. BINDING SITE agrees to pay interest to DIADEXUS at the rate of 1 ¹/2% per month (or such lesser amount as may be required by law) for each month or part thereof that such amounts remain unpaid beginning on the 31^st day following invoice date, and DIADEXUS may suspend shipment of future orders at DIADEXUS’ discretion.

Purchase orders: BINDING SITE shall submit its purchase orders to DIADEXUS in writing, or fax (650-246-6499) signed by an authorized representative of BINDING SITE. Orders directly shipped by DIADEXUS will be shipped within forty eight (48) hours from receipt of order unless the order is placed on Friday or holiday, in which case the Product(s) will be shipped the following Monday or business day.

BINDING SITE shall maintain separate and detailed accurate and complete records of all transactions in respect of the Products, including, but not limited to, such records as identify all customer purchases by Product and serial and/or lot number, and possess the capability to notify all purchasers in the event of a Product recall or corrective action. BINDING SITE will maintain customer records in an appropriate manner should the FDA or other regulatory body need to inspect such records.

BINDING SITE shall defray all expenses of and incidental to the distribution and sale of Products hereunder incurred by BINDING SITE.

BINDING SITE shall make no contracts or commitments on behalf of DIADEXUS nor make any promises or representations or give any warranties or guarantees with respect to the Products except as herein expressly permitted nor otherwise incur any liability on behalf of DIADEXUS without DIADEXUS’ prior written consent, nor represent itself as agent or partner of DIADEXUS.

BINDING SITE shall comply with all laws and regulations and requirements applicable to a seller of in-vitro diagnostics products, and with all laws and regulations and requirements of governmental agencies having jurisdiction within the Territory.

Sales of the Products. DIADEXUS agrees to sell the Products to BINDING SITE pursuant to orders DIADEXUS receives from BINDING SITE in accordance with the terms of this Agreement.

[*].

Technical Support. DIADEXUS agrees to provide BINDING SITE with reasonable technical support and advice for marketing the Products and to provide BINDING SITE sales and technical staff with training material necessary to use the Products. After BINDING SITE efforts for customer support under Section 3(f) are exhausted, DIADEXUS will provide reasonable technical support and advise.

Product Training. DIADEXUS undertakes to provide Product training for BINDING SITE’s marketing and sales staff if required by BINDING SITE. Such training courses to be organised in either BINDING SITE’s or DIADEXUS’ facilities [*].

Product Information. DIADEXUS shall provide to BINDING SITE [*] available, commercially reasonable, Product information, data and analyses to support Product promotional claims. BINDING SITE shall have the right at its own expense to use all such Information and Data in connection with its obligation under this agreement as determined by BINDING SITE at its own discretion.

Commercially Reasonable Efforts. If BINDING SITE places orders in excess of the [*] forecast under Section 3(h), DIADEXUS shall make commercially reasonable efforts to fulfil those orders.

DIADEXUS represents and warrants to BINDING SITE that the Products supplied shall (i) not be adulterated or misbranded by diaDexus within the meaning of the U.S. Food, Drug, and Cosmetic Act; and (ii) function in accordance with the documentation supplied by DIADEXUS in connection with such Products after inspection and acceptance by BINDING SITE; provided that BINDING SITE maintains and stores such Products in accordance with instructions contained in such documentation. DIADEXUS hereby represents and warrants that, to the best of its knowledge, the practice of any technology or patents comprising the Product that are licensed hereunder is and will be free of any infringement of patents of other persons.

DIADEXUS agrees to defend, indemnify, and hold BINDING SITE and subsidiaries, directors, officers, employees, and agents wholly harmless from and against third-party claims, losses, lawsuits, settlements, demands, causes, judgments, expenses, and cost (including reasonable attorney fees) arising under or in connection with this Agreement (“Claims”) in the event that such cost and liabilities are caused by a) DIADEXUS’ breach of any of its warranties in this Agreement, b) the failure of Products to function properly as described in the package insert by BINDING SITE under this Agreement, c) any negligence or wilful misconduct of DIADEXUS, or d) any other liability resulting from BINDING SITE’s use or sale of the Products under this Agreement. However, the foregoing rights to indemnity shall not apply to the extent that such claim, loss, lawsuit, or settlement results from BINDING SITE’s negligence or wilful misconduct, including, without limitation, the negligence of BINDING SITE’s employees, or from the modification of any Product of DIADEXUS by BINDING SITE or a third party not within DIADEXUS’ control or without DIADEXUS’ express written permission. This defense, indemnity and hold harmless obligation shall also include, but is not limited to, any such third-party claims, losses, damages, lawsuits, settlements, demands, causes, judgments, expenses and costs (including reasonable attorney fees) against BINDING SITE which relate in any manner to BINDING SITE’s alleged infringement of any property rights of a third party in or to the Product or licenses under this Agreement.

BINDING SITE agrees to defend, indemnify, and hold DIADEXUS and subsidiaries, directors, officers, employees, and agents wholly harmless from and against Claims in the event that such cost and liabilities are caused by any negligence or willful misconduct of BINDING SITE, including, without limitation, the negligence or wilful misconduct of BINDING SITE’s employees, or from the modification of any Product of DIADEXUS by BINDING SITE or a third party not within DIADEXUS’ control or without DIADEXUS’ express written permission. However, the foregoing rights to indemnity shall not apply to the extent that such claim, loss, lawsuit, or settlement results from DIADEXUS’ negligence or wilful misconduct including, without limitation, the negligence of DIADEXUS’ employees, or from the modification of any Product of BINDING SITE by DIADEXUS or a third party not within BINDING SITE’s control or without BINDING SITE’s express written permission.

DIADEXUS shall be liable to BINDING SITE or any person, for DIADEXUS’ failure to fill any orders, for error in filling orders, or for any delay in delivery, unless order errors or delivery delays are due to any cause within BINDING SITE’s control. DIADEXUS’ liability to BINDING SITE for defective Product is limited to [*].

Termination for Cause. Either party may terminate this Agreement for just cause: (a) if any breach of this Agreement by the other party is not cured within thirty (30) days written notice of the breach or (b) immediately upon either party’s insolvency, bankruptcy, suspension of business, assignment of assets for the benefit of creditors, voluntary dissolution, or appointment of a trustee for all or a substantial portion of the party’s assets.

Termination per Section 2(b). This Agreement may be terminated by DIADEXUS pursuant to the provisions of Section 2(b).

Survival. Termination of this Agreement shall not relieve the Parties from fulfilling obligations incurred up to the effective date of termination and it shall not relieve the Parties of any liability which accrued prior to the effective date of such termination, nor prejudice either Party’s right to obtain performance of any obligation provided for in this Agreement which expressly survives termination. Upon termination or expiration of the terms of this Agreement, neither party shall have any claim for termination indemnities, against the other whatsoever, whether based upon good will, established clientele obtained, expenditures incurred, investments made, activities undertaken or otherwise. The following obligations shall, survive termination of the Agreement: Section 5, 8, 9, and 10.

Access to information. BINDING SITE and DIADEXUS acknowledge that during the term of this Agreement they may have access to proprietary information, trade secrets, and other confidential information of one another; that such information is a valuable asset of their respective businesses and that its disclosure or unauthorized use may cause substantial harm to the applicable party. As used in this Agreement, the term “Confidential Information” means: (1) proprietary information of a party; (2) information marked or designated by a party as confidential; (3) information, whether or not in written form and whether or not designated as confidential, which is known to the other as being treated by the disclosing party as confidential; and (4) information provided to BINDING SITE or DIADEXUS by third parties which it is obliged to keep confidential. For the purposes of this Agreement the party disclosing the Confidential Information shall be referred to as the “Disclosing Party” and the party receiving the Confidential Information from the Disclosing Party shall be referred to as the “Receiving Party.”

Non-disclosure and Non-use. The parties agree that they shall not disclose to others or use except as permitted hereunder during the term of this Agreement any Confidential Information of the other party; except that neither party shall have any obligation with respect to Confidential Information of the other party that

at the time of receipt, is in the public domain or subsequently enters the public domain without fault of the Receiving Party;

Termination. Upon termination or expiration of this Agreement the Receiving Party shall cease all use of the other party’s Confidential Information and if requested return all Confidential Information received (except one copy which may be retained in the Receiving Party’s legal department on a confidential basis for the purpose of verifying its obligations hereunder.

Remedies. In the event of the breach by any party hereto of the terms of this Section , the party alleging violation to this Section may be entitled to specific performance, including immediate issuance of a temporary restraining order or preliminary injunction, and to any other remedies provided by applicable law.

Duration. The obligations set forth in this Section will continue beyond the termination of expiration of this Agreement and for so long as any party possesses Confidential Information.

Non Assignment. Neither Party will assign, transfer, or sell its rights and obligations under this Agreement, or delegate its duties hereunder, without the prior written consent of the other Party. A transfer of a controlling interest in either Party or its parent company shall constitute an assignment.

Entire Agreement/Modification. This Agreement contains the entire Agreement between the parties with respect to the Products, no modification or waiver of any of the provisions shall be binding upon the parties unless made in writing and signed by both parties. The terms and conditions of this Agreement will prevail over any inconsistent or additional terms contained in BINDING SITE’s purchase order for the Products.

Waiver. Either party may waive in writing any obligation the other party has under this Agreement, but such a waiver will not affect a party’s right to require strict compliance with the Agreement in the future.

Employment Agreement. BINDING SITE and DIADEXUS agree not to solicit employment from each other, directly or indirectly hire any employee from each other, without written consent from the appropriate representative of both parties.

The Binding Site Inc.

5889 Oberlin Drive, Suite101,

San Diego, CA 92121

Attention: Gary Tremain

By:      /s/ R. Rowland

343 Oyster Point Blvd.

South San Francisco, CA 94080

  Address:

5889 Oberlin Drive, Suite 101

San Diego, CA 92121

Description

Unit

[*] PLAC® Test Kit for Lp-PLA2

[*] PLAC® Test controls