In this task, you're given a passage that represents a legal contract or clause between multiple parties, followed by a question that needs to be answered. Based on the paragraph, you must write unambiguous answers to the questions and your answer must refer a specific phrase from the paragraph. If multiple answers seem to exist, write the answer that is the most plausible.

[EX Q]: 1                                                                     Exhibit 10.2

                           CO-HOSTING AGREEMENT

  This Co-Hosting Agreement (the Agreement) is made by and between NETWORKS ASSOCIATES, INC., a Delaware corporation, doing business as Network Associates, Inc., with its principal place of business at 3965 Freedom Circle, Santa Clara, California 95054 (NAI), and SOFTWARE.NET CORPORATION, a Delaware corporation, a.k.a. Beyond.com, with its principal place of business at 1195 West Fremont Avenue, Sunnyvale, California 94087 (Co-Host). The Effective Date of this Agreement (herein called the Effective Date) is September 21, 1998.

                                 RECITALS

  WHEREAS, Co-Host owns various Internet locations, including the location set forth in Part 1 of Exhibit A hereto (the Co-Host Site) and markets software and computer hardware products from the Co-Host Site (herein referred to as the Goods).

  WHEREAS, Co-Host, as successor of Cybersource Corporation, and NAI are parties to an Electronic Software Distribution Agreement, dated as of September 1, 1997 regarding the electronic distribution of NAI's Goods (the ESD Agreement).

  WHEREAS, NAI has developed various Internet locations (the NAI Internet Sites) (with separate URL designations issued to NAI by InterNIC) (said designations being herein referred to individually as an URL) comprised of one or more file servers, with an Internet access at the applicable URL. Those portions of the NAI Internet Site or any future Internet locations developed by NAI which are accessible by members of the general public are referred to herein as the Originating Locations. NAI permits the maintenance of hot links from the Originating Locations to other Internet locations, whereby the end user can transfer from the NAI Internet Sites to the Co-Host Site by clicking the pointing device on highlighted text or images. Originating Locations does not include the McAffee Mall (as defined in Part 2 of Exhibit A) or web servers within a firewall or accessable only by passwords or other similarly restricted URLs (the Restricted Sites); provided, however, that the term Restricted Sites shall not include sites accessable only through online services (such as AOL) and other portals generally accessable to the public.

  WHEREAS, NAI and Co-Host desire to place a Co-Host hot link for the Goods at the Originating Locations and NAI and Co-Host desire to enter into certain additional agreements regarding such marketing opportunities through the Originating Locations.

  THEREFORE, in consideration of the foregoing, and of the mutual covenants and agreements hereinafter set forth, Co-Host and NAI have entered into the agreements hereinafter set forth.

                                    1

2      IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the Effective Date.

                                    SOFTWARE.NET CORPORATION                                        (a.k.a. Beyond.com)

ADDRESS FOR NOTICES 1195 West Fremont Avenue Sunnyvale, California 94087 Attention: President

                                    By:        /s/ JAMES R. LUSSIOR                                            -------------------------------------                                        Name:          James R. Lussior                                              -----------------------------------                                        Title: Vice President Business Operations                                               ----------------------------------                                        Date:               9/21/98                                              -----------------------------------

                                    NETWORKS ASSOCIATES, INC.

ADDRESS FOR NOTICES 3965 Freedom Circle Santa Clara, California 95054 Attention:  Vice President             Legal Affairs

                                    By:           /s/ PRABHAT K. GOTAL                                            -------------------------------------                                        Name:             Prabhat K. Gotal                                              -----------------------------------                                        Title:                CFO                                               ----------------------------------

Date: September 21, 1998





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                     TERMS AND CONDITIONS OF AGREEMENT

1.   LOCATION. During the Term (as defined in Section 6 (a) below), NAI shall      provide the following marketing considerations to Co-Host:

  (a)  Co-Hosting Rights. Co-Host shall be permitted to maintain on the           Online Service Page (as defined in Part 2 of Exhibit A) of the           Originating Locations in the manner set forth on Exhibit B hereto           (and on such other positions as are set forth on Exhibit B or as the           parties may mutually agree upon in writing from time to time) a hot           link to Internet locations specified by the Co-Host (the           Destination) from which Goods (other than Competitor's Goods           (hereinafter defined)) may be sold. The web pages at the Destination           shall be maintained in accordance with the requirements of this           Agreement, including without limitation, Section 2 hereof.           Competitor's Goods as used herein shall mean the Goods of any of the           persons or entities described on Part 1 of Exhibit C attached hereto           and made a part hereof. The Destination shall not contain any links to           any third party sites for the purchase of Competitor's Goods; provided           that the Destination will link to the Co-Host Site (which will sell           Competitor's Goods).

  (b)  Exclusive Positioning. Co-Host shall be the exclusive reseller of           software products (Software) at the Originating Locations. The           preceding sentence shall not prohibit NAI from (i) reselling Software           including NAI Goods (hereinafter defined) from the McAfee Mall; (ii)           referencing and linking to sites of strategic partners (other than           competitors of Co-Host listed on Part 2 of Exhibit C) which may also           be involved in the resale of Software from such sites; provided that           no Software may be purchased on the page of such site which is linked           to any Originating Location and further provided that the references           and links to the sites of strategic partners shall not be placed on           the Online Service Page; and (iii) advertising Software with banners,           buttons and other forms of online advertising; provided that any link           from such advertising takes the end user to the publisher of the           Software and not a reseller of Goods (other than Co-Host). For           example, an advertising banner or button for the Windows 98 software           program may link back to the website of Microsoft Corporation but not           the website of Dell Computer Corporation which is reselling the           program. Without limitation on the foregoing, NAI may co-host a           comparative shopping service on the Originating Locations. NAI will           obtain a written covenant that the comparative shopping co-host will           present sellers of Software in a neutral manner and upon request of           Co-Host will require removal or alteration of presentations by such           co-host on such co-hosted facility which Co-Host reasonably deems to           be non-neutral; provided, however, that, notwithstanding the           foregoing, Co-Host may be the featured or most prominent Software           reseller on any such service.

  (c)  Short Term Product Exclusives. For a period of fourteen (14) days           following release of any new NAI Goods or major version releases           (i.e., version 3.0 to 4.0) of existing NAI Goods, Co-Host shall be the           exclusive online seller of any such

                                    3    4

       release released during the Term. NAI Goods as used herein shall           mean retail desktop software products offered by NAI under the           McAfee brand or other NAI owned brand, which NAI makes available for           resale through distributors and resellers via the Internet.

  (d)  Reference Site. Co-Host may refer to the Originating Locations as a           Co-Host customer location and to NAI as a Co-Host customer hereunder           provided all such references shall be subject to the prior review and           approval of NAI, which approval will not be unreasonably withheld.

  (e)  Links to Online Service Page. Any end user accessing the principal           URLs of NAI (e.g., mcafee.com, cybermedia.com, pgp.com, tis.com) shall           be taken to the Online Service Page. Any end user accessing a buy           button on any of the Originating Locations shall be taken to the           Online Service Page. NAI shall not sell retail desktop consumer           products, including without limitation, NAI Goods from the NAI           Internet Sites (other than the McAfee Mall).

       NAI reserves the right to change the URL of the Originating Locations           from time to time and agrees to give Co-Host as much notice of any           such change as is practicable.

2.   MARKETING AND SALES.

  (a)  Placement of Order. In consideration of the Co-Hosting Fee set forth           in Part 3 of Exhibit A, NAI shall provide the marketing           consideration identified in Section 1 during the Term of this





       Agreement.

  (b)  Advertising Materials; Destination Operation. Co-Host shall provide to           NAI artwork and text materials with respect to the advertisement of           the Destination at the Originating Locations. Such artwork and           materials must be non-infringing, inoffensive, accurate, truthful and           otherwise comply with all applicable laws. Co-Host shall comply with           all applicable laws in connection with the operation of the           Destination, including without limitation, requirements regarding the           confidentiality of information concerning end users. NAI retains the           right, but not the obligation, to disapprove or remove any           advertisements or advertising materials it reasonably deems illegal,           inappropriate or otherwise inconsistent with the purposes of the           Originating Sites, without the consent of Co-Host.

  (c)  Use of Trademarks. Co-Host hereby grants to NAI a non-exclusive,           non-transferable, royalty-free license during the term of this           Agreement to use the trademarks, service marks and trade names of           Co-Host in connection with the advertising and promotion of the Goods           from the Originating Locations, provided that NAI complies with the           terms of Section 9(b) of the Web Site Services Agreement (as defined           below). Co-Host reserves the right to terminate the foregoing right,           after giving NAI notice and opportunity to cure the allegedly harmful           use, if in Co-Host's reasonable judgment, NAI's use of such           trademarks, service marks and trade names harms the business, image or           goodwill of Co-Host.

                                    4    5

  (d)  Limited Duty of Promotion. NAI shall have no duty or obligation to           advertise or promote the Goods, other than as set forth in this           Section 2. Except as expressly set forth herein (including, without           limitation, as set forth in this Section 2(d)), NAI does not,           expressly or impliedly, guaranty or warrant any results or level of           sales or customer leads to Co-Host. NAI reserves the right to cease           publication of the Originating Locations for brief periods from time           to time for maintenance or other purposes; provided that the           Originating Locations will comply with the same Uptime Requirements           specified with respect to the Managed Site in the Web Site Services           Agreement.

  (e)  Marketing Promotions. During the Term, Co-Host and NAI will regularly           discuss and implement mutually agreed upon jointly funded marketing           promotions. NAI and Co-Host hereby agree that the marketing promotions           set forth on Exhibit D hereto will be implemented as set forth on           Exhibit D.

  (f)  Distribution of Physical Products. NAI grants to Co-Host the right to           distribute physical copies of NAI's Goods to end users ordering from           the Managed Site, the Destination or Beyond.com upon the terms set           forth in Exhibit E attached hereto and made a part hereof.

3.   PAYMENT AND RECORDS.

  (a)  Fees. Subject to the provisions of Section 6 hereof, Co-Host shall pay           to NAI the amount designated in Part 3 of Exhibit A as the           Co-Hosting Fee upon the schedule set forth in such Part.

  (b)  Payment Terms. Except as set forth in such Part 3 of Exhibit A,           payments from Co-Host to NAI shall be due thirty (30) days from the           date of invoice. All payments will be made in United States dollars,           free of any taxes then currently applicable, at the address designated           above by NAI. Late payments shall bear interest at the lesser of: (i)           the maximum rate permitted by law, and (ii) the rate of 1.5% per month           from the due date until paid.

4.   EQUITABLE RELIEF. Each party acknowledges that any breach of its      obligations under this Agreement with respect to the proprietary rights or      confidential information of the other party will cause the other party      irreparable injury for which there are inadequate remedies at law, and      therefore such other party will be entitled to equitable relief in addition      to all other remedies provided by this Agreement or available at law.

5.   PROPRIETARY RIGHTS. NAI retains ownership of the NAI Internet Site, the      Originating Locations, the trademarks and all intellectual property rights      in connection with the NAI Internet Site, including without limitation, its      URL designations and all rights from InterNIC in connection therewith.      Co-Host and its licensors retain ownership of all intellectual property      rights in the advertising materials provided, the trademarks and all      intellectual property rights in connection with the Destination and the      Co-Host Site, including, without limitation, its URL designations and all      rights from InterNIC in connection therewith, and all of its other      intellectual property rights.

                                    5    6

6.   TERM AND TERMINATION.

  (a)  Term. This Agreement will commence on the Effective Date, and will           terminate on the third anniversary of the Effective Date (the Term),           unless earlier terminated as provided in this Agreement.





  (b)  Termination. A party may terminate this Agreement immediately: (i) if           the other party engages in any material unlawful business practice and           such practice continues uncured thirty (30) days following written           notice thereof, (ii) if the other party fails to perform any material           obligation, (which shall include, without limitation, the payment           obligations hereunder and compliance with the Uptime Requirements in           respect of the Originating Locations) or violates any material           restriction contained in this Agreement and such failure continues           uncured thirty (30) days following written notice thereof, (iii) by           such party if that certain Web Site Services Agreement between NAI and           Co-Host dated of even date herewith (the Web Site Services           Agreement) or the ESD Agreement is terminated by the other party,           (iv) if a receiver is appointed for the other party or its property,           (v) if the other party makes an assignment for the benefit of           creditors, (vi) if the other party becomes the subject of any           proceeding under any bankruptcy, insolvency or debtor's relief law,           (vii) upon ninety (90) days prior notice in writing by Co-Host at any           time after June 30, 2000, if the term of the Web Site Services           Agreement has not been renewed for an additional term of one (1) year           or more pursuant to its terms or (viii) if the party terminates the           Web Site Services Agreement by reason of the other party's material           default thereunder.

  (c)  Effect of Termination. Upon the effective date of the termination, all           outstanding invoices and other invoicable amounts will become due and           payable. Co-Host's contractual right to the marketing consideration           shall cease immediately upon the effective date of the termination.           Termination or expiration of this Agreement if by reason of material           breach by Co-Host shall not affect any of Co-Host's payment           obligations, all of which survive termination of this Agreement;           provided that, in (i) the event of termination of this Agreement by           Co-Host due to a material default by NAI, NAI shall pay to the Co-Host           the Liquidated Damages Amount (as defined in Part 2 of Exhibit A).

7.   CONFIDENTIALITY. Confidential Information disclosed by either party in      writing and marked as confidential, proprietary or the like (or      disclosed verbally if a written summary is provided within thirty days),      including any information relating to such party's research, development,      proprietary technology, product and marketing plans, finances, personnel      and business opportunities will be considered confidential information.      Each party will not use the other party's confidential information except      as required to achieve the objectives of this Agreement and will not      disclose such confidential information except to employees, agents and      contractors who have a need to know in the discharge of their duties under      this Agreement. Such restrictions will not apply to information that      becomes public knowledge other than through the disclosing party, is      independently developed by the non-disclosing party, or is lawfully      required to be disclosed by any governmental agency or otherwise required      to be disclosed by law.

                                    6    7

  Neither party will make any disclosure of, or statement covering, the terms      of this Agreement, including the financial terms, to any third parties      (other than its attorneys, accountants and professional consultants),      without obtaining the other's prior written consent, except as required by      court order or applicable regulatory authorities, including without      limitation, the rules and regulations of the Securities and Exchange      Commission, any stock exchange and the NASDAQ. The parties agree that under      their current understanding, disclosure of the financial terms of this      Agreement is not required under the foregoing rules and regulations. The      obligations of this Section 7 shall survive the termination of this      Agreement, under any circumstances. The parties shall make a joint press      release announcing the relationship, the timing and content of which shall      be subject to the mutual agreement of the parties.

8.   RELATIONSHIP OF THE PARTIES. The parties are independent contractors and      not partners, joint venturers or agents, and neither party may obligate the      other to any warranty or other obligation. Neither NAI nor Co-Host is by      virtue of this Agreement authorized as an agent or other representative of      the other party.

9.   REPRESENTATIONS, WARRANTIES AND INDEMNIFICATION.

  (a)  Co-Host represents and warrants to NAI that Co-Host has all right,           title, ownership interest and/or marketing rights necessary to provide           the advertising materials to NAI, to perform its obligations hereunder           and to operate the Destination. Each party further represents and           warrants to the other that it has not entered into any agreements or           commitments which are inconsistent with or in conflict with the rights           granted or obligations incurred by the representing party in this           Agreement. Co-Host further represents and warrants that the           advertising materials supplied hereunder do not infringe any Covered           Country (hereinafter defined) copyright, trademark, or trade secret           right. Covered Country shall mean the United States of America and any           member state of the European Economic Union. Co-Host agrees that, if           notified promptly in writing and given sole control of the defense and           all related settlement negotiations, it will defend NAI, its           employees, officers and agents, against any claim based on an           allegation that (i) advertising materials supplied hereunder infringes           a Covered Country patent, copyright, trademark or state trade secret           right, or (ii) Co-Host violated any law, statute or ordinance or any           governmental or administrative order, rule or regulation with regard





       to the advertising materials, the operation of the Destination or the           manufacture, possession, distribution, use or sale of the Goods.           Co-Host will pay any resulting costs, damages and attorneys' fees           finally awarded by a court, or agreed to in settlement by Co-Host,           with respect to any such claims. NAI agrees that, if the advertising           materials become, or in Co-Host's opinion are likely to become, the           subject of an infringement claim, NAI will permit Co-Host, at           Co-Host's option and expense, to, among other things, procure the           right for NAI to continue marketing and using the advertising           materials, or to replace or modify them so that they become           non-infringing.

                                    7    8

  (b)  NAI represents and warrants that NAI has all right, title, ownership           interest and/or marketing rights necessary to operate the Originating           Locations, provide the Products to Co-Host, and the Products shall be           free and clear of all liens and encumbrances. NAI further represents           and warrants that it has not entered into any agreements or           commitments which are inconsistent with or in conflict with the rights           granted to Co-Host in this Agreement. NAI further represents and           warrants that the Products supplied hereunder do not infringe any           Covered Country patent, copyright, trademark, or trade secret right.           NAI agrees that, if notified promptly in writing and given sole           control of the defense and all related settlement negotiations, it           will defend Co-Host, its employees, officers and agents against any           claim based on an allegation that (i) a Product supplied hereunder           infringes a Covered Country patent, copyright, trademark or trade           secret right, or (ii) NAI violated any law, statute or ordinance or           any governmental or administrative order, rule or regulation with           regard to a Product or its manufacturer, possession, use or sale. NAI           will pay any resulting costs, damages and attorneys' fees finally           awarded by a court, or agreed to in settlement by NAI, with respect to           any such claims to the extent of the compensation received under this           Agreement. Co-Host agrees that, if the Products in the inventory of           Co-Host, or the operation thereof, become, or in NAI's opinion are           likely to become, the subject of an infringement claim, Co-Host will           permit NAI, at NAI's option and expense, to, among other things,           procure the right for Co-Host to continue marketing and using such           Products, or to replace or modify them so that they become           non-infringing. If neither of the foregoing alternatives is available           on terms that NAI deems reasonable, Co-Host will return such Products           on written request from NAI. NAI will grant Co-Host a credit equal to           the price paid by Co-Host for such returned Products, as adjusted for           discounts, returns and credits actually given, provided that such           returned Products are in an undamaged condition. NAI will have no           obligation to Co-Host with respect to infringement of patents,           copyrights, trademarks or trade secrets or other proprietary rights           beyond that stated in this Section 9(b).

  (c)  No Combination Claims. Notwithstanding Section 9(b), NAI will not be           liable to Co-Host for any claims to the extent they arise solely based           upon the combination, operation or use of any Product with equipment,           data or programming not supplied by NAI, or to the extent they arise           solely based upon the alteration or modification of the Products by           the Co-Host or the purchaser of such Products.

10.  LIMITATION OF LIABILITY. EXCEPT FOR CLAIMS UNDER SECTION 9 HEREOF, THE      LIABILITY OF A PARTY TO THE OTHER FOR DIRECT DAMAGES SHALL NOT EXCEED      FIFTEEN MILLION DOLLARS. EXCLUSIVE OF ANY CLAIMS BY THIRD PARTIES FOR      INJURY OR DAMAGES TO PERSONS OR TANGIBLE PROPERTY DIRECTLY CAUSED BY ANY      PRODUCT, NEITHER PARTY'S LIABILITY WITH REGARD TO THIS AGREEMENT OR THE      ADVERTISING MATERIALS, IF ANY, WILL INCLUDE CONSEQUENTIAL, INCIDENTAL,      SPECIAL OR OTHER INDIRECT DAMAGES, SUCH AS LOST PROFITS, EVEN IF

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  THE OTHER PARTY HAS KNOWLEDGE OF THE LIKELIHOOD OF SUCH DAMAGES.

11.  FORCE MAJEURE. Neither party shall be liable for the failure to perform any      of its obligations under this Agreement, except for payment obligations, if      such failure is caused by the occurrence of any event beyond the reasonable      control of such party, including without limitation, fire, flood, strikes      and other industrial disturbances, failure of raw materials suppliers,      failure of transport, accidents, transmission difficulties, phone service      interruptions, riots, insurrections, acts of God or orders of governmental      agencies.

12.  GENERAL.

  (a)  This Agreement, the Web Site Services Agreement and the certain ESD           Agreement between the parties set forth the entire agreement between           the parties on all subject matters and supercede all prior agreements           and understandings between the parties.

  (b)  This Agreement may not be changed, terminated or amended except in           writing. Whenever the consent of any party is required hereunder, such           consent may be given or withheld in such party's sole discretion and           with or without reason or cause, unless this Agreement states           otherwise.





  (c)  The parties agree that the terms and conditions of this Agreement           shall prevail over any contrary or additional terms in any purchase           order (unless agreed to in writing by both parties), sales           acknowledgment, confirmation or any other document issued by either           party affecting the purchase and/or sale of Goods. The terms of the           Exhibits to this Agreement shall be equal in importance to the terms           of the body of this Agreement.

  (d)  Either party's failure or delay in exercising any of its rights will           not constitute a waiver of such rights unless expressly waived in           writing. Neither party may assign this Agreement without the other's           prior written approval, except by operation of law or in connection           with the sale of substantially all of the assets of such party's           business or the acquisition of such party by a third party.

  (e)  This Agreement will be governed and interpreted according to the laws           of the State of California, without reference to principles of           conflicts of laws. Each party hereto expressly consents to the           personal jurisdiction of the state and federal courts located in Santa           Clara County, California, and expressly waives any defense to any           action based on inconvenient forum, choice of venue, lack of personal           jurisdiction, sufficiency of service of process or the like.

  (f)  In the event of any litigation or arbitral proceeding between they           parties regarding this Agreement, the advertising materials or the           obligations of the parties hereunder, the party not prevailing therein           shall pay the reasonable attorneys' fees and court costs of the party           prevailing therein.

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  (g)  If a court of law finds any provision of this Agreement unenforceable,           the parties agree to modify such provision to the extent necessary to           make it legal and enforceable while preserving its intent and the           economic effect of the unenforceable provision.

  (h)  Any notices and demands provided hereunder must be in writing and will           be deemed given upon the earlier of actual receipt or two (2) days           after being sent by overnight Federal Express or Express Mail, return           receipt requested, to the appropriate address set forth above, as such           contacts and addresses may be changed by written notice to the other           party.

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                                EXHIBIT A

                        Additional Agreement Terms                  (with location of first reference in Agreement)

1.   Destination                                                      (Recitals)

  www.mol.com or any successor site, which shall be the page to which traffic is directed from the public NAI URLs.

  Co-Host Site      www.beyond.com

2.   Certain Definitions

  1. Aggregate Revenue in any year of the Term shall mean the revenue generated in such year by (i) the sale of Goods to customers entering the Co-Host Site through the Destination,and (ii) sales of Goods from the Managed Site (as defined in the Web Site Services Agreement).

  2. Liquidated Damages Amount shall mean the difference between (i) the aggregate amount of the Co-Hosting Fee paid by Co-Host (the Aggregate Fee) and (ii) the Aggregate Fee multiplied by a number the numerator of which shall be the actual Aggregate Revenue through the effective date of termination of the Agreement and the denominator of which shall be the aggregate of the Minimum Revenue Targets through the effective date of the termination.

  3. McAfee Mall shall mean the same thing as the Managed Site under the Web Site Services Agreement.

  4. Online Service Page shall mean the general reference page for the NAI Sites established under the URL www.mol.com or any successor URL.

  5. Minimum Revenue Targets shall mean: (i) in the first (1st) year of the Term, Aggregate Revenues of not less than Nine Million Dollars ($9,000,000) and (ii) in the second (2nd) year of the Term, Aggregate Revenues of not less than Twelve Million Dollars ($12,000,000).

3.   Co-Hosting Fee                                              (Section 2(a))      Co-Host shall pay to NAI a Co-Hosting Fee in the following amounts:

  (a)  A non-refundable initial payment of Two Million Five Hundred Thousand           Dollars ($2,500,000) payable as follows: $2,000,000 on or before





       September 30, 1998, and the balance within sixty (60) days of the           execution of this Agreement.

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  (b)  Quarterly payments of $312,500 each, with the first payment being due           September 15, 1999, and on each December 15, March 15, June 15, and           September 15 thereafter during the Term unless (i) the Agreement is           terminated in accordance with Section 6 of the Agreement prior to such           date in which case no quarterly payments will be due following the           effective date of such termination or (ii) if the Minimum Revenue           Target (as defined in Part 2 of this Exhibit A) for the first year           of the Term is not achieved by the first anniversary of the Effective           Date, in which case no quarterly payments are payable until such time           as the Minimum Revenue Target for the first year of the Term is           achieved at which point Co-Host will resume making future quarterly           payments on the schedule and in the amount set forth above for the           duration of the Term or (iii) if the aggregate Minimum Revenue Targets           (as defined in Part 2 of this Exhibit A) for the first and second           year of the Term are not achieved by the second anniversary of the           Effective Date, then, even if the Minimum Revenue Target (as defined           in Part 2 of this Exhibit A) for the first year of the Term has been           achieved prior to such second Anniversary, no quarterly payments are           payable during the second year of the Term until such time as such           aggregate Minimum Revenue Target is achieved at which point Co-Host           will resume making future quarterly payments on the schedule and in           the amount set forth above for the duration of the Term. The parties           hereby agree to renegotiate in good faith a downward adjustment to the           foregoing quarterly payments in the event that the Minimum Revenue           Target for year one (1) is not achieved in the first year of this           Agreement.

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                                EXHIBIT B

     SPECIFICATIONS FOR HOT LINK FROM THE ONLINE SERVICE PAGE OF ANY                               ORIGINATING LOCATION

The hot link to the Co-Host site shall be no less prominent (whether is size, location or format) than any hot link to the McAfee Mall from the Online Service Page. In addition, in the event that any hot links to the McAfee Mall are located on any web page on the Originating Locations other than on the Online Service Page, then a hot link to the Co-Host Site shall all be located on such web page and shall be no less prominent (whether is size, location or format) than any hot link to the McAfee Mall. Notwithstanding the foregoing, the hot links to the Co-Host Site referred to above shall be no less prominent (whether in size, location or format) than any third party hot link on the Online Service Page or the Originating Locations.

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                                EXHIBIT C

                            COMPETITORS OF NAI

PART 1

Computer  Associates International, Inc. Symantec Corporation Check Point Software Internet Security Systems, Inc. Cisco Systems (only with respect to firewall products) Security Dynamics

                          COMPETITORS OF CO-HOST

PART 2

Microwarehouse CompUSA Insight PC Connection





Best Buy Circuit City Cyberian Outpost Digital River Egghead.com Programmers Paradise Office Max Online Software Store Office Depot Online Software Store Staples Online Software Store WalMart Online Software Store BuyDirect.com Barnes & Noble Online Software Store Amazon.com Software Store Dell Computer Online Software Store Gateway 2000 Online Software Store Software Street Techwave and related companies CDW Online Store

THE PARTIES AGREE TO ACT IN GOOD FAITH IN MODIFYING THE ABOVE LIST OF COMPETITORS.

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                                EXHIBIT D

                         Joint Marketing Programs

  PROGRAM:                                                   FUNDING:

1.   NAI will make five e-mail promotions during the fourth quarter of 1998 for      NAI products which will contain links to the Online Service Page.

2.   NAI will make available up to 500,000 impressions on the NAI Internet Sites      and ten percent (10%) of the impressions available on NAI's Upgrade/Update      site for advertising materials to promote Beyond.com.

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                                EXHIBIT E

                           DISTRIBUTION ADDENDUM

  WHEREAS, NAI owns and/or markets certain computer software and hardware products set forth on Exhibit A (Products).

  WHEREAS, Co-Host is an independent reseller of computer products to end users ordering products through web sites on the Internet operated by Co-Host.

  WHEREAS, Co-Host distributes electronic copies of the Products pursuant to the ESD Agreement.

  WHEREAS, Co-Host desires to distribute the Products and NAI desires to make the Products available to Co-Host for further distribution.

  THEREFORE, in consideration of the foregoing, and of the mutual covenants and agreements hereinafter set forth, NAI and Co-Host enter into the following additional agreements regarding the Products:

1.   APPOINTMENT. NAI appoints Co-Host as a non-exclusive distributor of the      Products to end users ordering the Products from the Destination or the      Co-Host Site, and Co-Host accepts this appointment. Co-Host shall      distribute the Products, as an independent reseller, at its own risk and      expense and subject to any such prices, contractual terms and conditions as      Co-Host may from time to time determine. Nothing in this Agreement shall      prohibit Co-Host from distributing competing products in the Territory. The      Territory as that term is used herein shall mean all countries in the      world except countries to which export or re-export of any Product, or the      direct products of any Product is prohibited by United States law without      first obtaining the permission of the United States Office of Export      Administration or its successor. Co-Host shall not have the right to assign      or otherwise transfer this Agreement or any rights herein granted to any      other person or entity, except by operation of law or in connection with      the sale of all of its assets, or the acquisition of the Co-Host by a third      party. Any such attempted assignment shall be void and the Agreement shall      remain in effect.

2.   DISTRIBUTION. Co-Host has the right to market and distribute the Products      subject to the license agreement that accompanies such Product. Co-Host may





  not engage in the rental of any of the Products. Co-Host shall not in any      event remove from or obscure upon any Products any labels placed thereon by      NAI containing statements of restrictions upon distribution, without the      prior written consent of NAI. NAI reserves the right in its sole discretion      and without liability to Co-Host to add additional Products, change the      prices for the Products pursuant to Section 5, modify the Products, change      the level of NAI's support for the Products and discontinue the      availability of any Product. Any addition or deletion from the list of      Products will be indicated by NAI's revision to the NAI price list, and NAI      will use reasonable efforts to provide Co-Host with thirty (30) days notice      prior to the effective date of such changes indicated on the NAI price      list.

                                    2    17

3.   MARKETING.

  (a)  General. Co-Host will use commercially reasonable efforts to market           the Products it orders to the best of its ability, and to that end           will (i) conduct marketing activities authorized by NAI, (ii) support           special promotions initiated by NAI, and (iii) maintain a sound           financial condition. Co-Host will conduct its business in a manner           that reflects favorably upon the Products and NAI.

  (b)  Advertising; Use of Trademarks. Co-Host may advertise and promote the           Products in a commercially reasonable manner and, subject to the           provisions of Section 5 of the Co-Hosting Agreement, may use           trademarks, service marks and trade names provided by NAI in           connection therewith, provided that all such promotions and           advertising will be consistent with NAI's general quality standards           and the provisions of Section 5 of the Co-Hosting Agreement. Unless           otherwise agreed upon in writing by NAI, Co-Host will submit each           advertisement and promotion to NAI for trademark review and approval           prior to initial release, which approval will not be unreasonably           delayed or withheld. All such usage which was not expressly approved           by NAI must be terminated immediately upon receipt of notice from NAI           to that effect.

  (c)  Trademarks Rights. NAI owns any and all trademarks, trade names, and           service marks for the Products (as noted in Section 5 of the           Co-Hosting Agreement). Such trademarks, trade names, and service marks           shall include all product names, the names Network Associates,           logos, designs, and other designations or brands used by NAI in           connection with the Products. Co-Host acknowledges and agrees that NAI           is not granting to Co-Host any rights in any Product trademark, trade           name, or service mark in or outside of the Territory.

4.   INSPECTIONS, RECORDS AND REPORTING.

  (a)  Sales Out Reports. Co-Host will provide to NAI within ten (10) days           after the end of each calendar month, a computer media data file in           the format established by NAI showing, for such month, Co-Host's total           sales, by customer and by Product from each location. If requested by           NAI, Co-Host shall provide such reports with respect to weekly periods           or bi-weekly periods prior to the end of the calendar month in which           such period occurs.

  (b)  Inventory Level Reports. Co-Host will provide to NAI on Monday of each           week, a computer media data file in the format established by NAI           showing Co-Host's current inventory levels of each Product (including           items in transit), and weekly runrate snapshots and the other           information reasonably requested by NAI.

  (c)  Records. For three (3) years after each calendar quarter during the           term of this Agreement, Co-Host will keep, at Co-Host's office, full           and accurate books of account and copies of all documents and other           materials for such quarter relating to this Agreement and Co-Host's           records, accounts and contracts relating to the distribution of the           Products.

                                    3    18

  (d)  Audit. NAI may inspect the records described in Sections 4(c) upon           demand from time to time. In addition, Co-Host agrees to allow NAI's           independent auditors to audit and analyze appropriate accounting           records of Co-Host from time to time (but not more than one every six           (6) months) to ensure compliance with all terms of this Agreement. Any           such audit shall be permitted by Co-Host within fifteen (15) days of           Co-Host's receipt of NAI's written request to audit, during normal           business hours. The cost of such an audit will be borne by NAI unless           a material discrepancy indicating inadequate record keeping or that           additional fees due to NAI are discovered, in which case the cost of           the audit shall be borne by Co-Host. A discrepancy shall be deemed           material if it involves payment or adjustment of more than five           percent of the amount reported in favor of NAI. Audits and inspections           shall not interfere unreasonably with Co-Host's business activities.]

5.   ORDERING AND PAYMENT.

  (a)  NAI's Acceptance. Any order for delivery of physical product placed





       with NAI is subject to acceptance by NAI within ten (10) days           following receipt by NAI. NAI may decline any order, in whole or in           part, and unless NAI accepts an order in writing, the order is           considered accepted only to the extent it is fulfilled.] The terms and           conditions of this Agreement and of the applicable NAI invoice or           confirmation will apply to each order accepted or shipped by NAI.           Electronic confirmation from an authorized NAI email address shall           have the same effect as a signed written confirmation. The provisions           of Co-Host's form of purchase order or other business forms will not           apply to any order notwithstanding NAI's acknowledgment or acceptance           of such order.

  (b)  Price to Co-Host. NAI will inform Co-Host as to its current suggested           retail price of the Products and standard discount or pricing granted           to NAI's traditional product distributors. During the term of this           Agreement, Co-Host will be invoiced on the basis of the discounts set           forth on Exhibit A of this Distribution Addendum. Discounts off           suggested retail price (SRP) for standard NAI Products shall exclude           tradeups, upgrade SKUs and special promotions, unless otherwise           indicated. NAI may change its SRP from time to time upon written           notice to Co-Host, which may take the form of a revised price list,           and NAI may notify Co-Host of a different discount from SRP in the           event NAI offers special promotional SRPs or Product prices in NAI's           discretion.

  (c)  Price Increase. If NAI increases its suggested retail price for any           Product (a product upgrade with a different part number will not be           the same Product) and there is a resulting increase in the price of           Products to Co-Host, NAI will give Co-Host thirty (30) days advance           notice of the effective date of any such increase and:

       (i)  NAI will honor the old price for any shipments of such Product                already in transit to Co-Host;

                                    4    19

       (ii) All additional orders following such thirty (30) day period will                be shipped at the new price;

      (iii) NAI has orders for such Product from Co-Host already booked into                NAI's order entry system at the time of such price increase or if                Co-Host orders additional Products during such thirty (30) day                period, then the price increase will not apply to that portion of                such orders which call for shipments of not more than the monthly                average quantity of such Products shipped to Co-Host in the three                month period preceding the date of the increase; and

       (iv) Orders for such Product in NAI's order entry system in excess of                the quantity specified in (iii) above will be shipped at the new                price unless they are canceled by Co-Host by written notice to                NAI, provided that such notice is received by NAI no later than                fifteen (15) days prior to the date of shipment specified in such                order.

  (d)  Price Decrease. If NAI decreases its suggested retail price for any           Product (a product upgrade with a different part number will not be           the same Product), the decrease will apply to all units of such           Product in Co-Host's inventory and orders in transit to Co-Host from           NAI that are in an unopened, salable condition as of the effective           date of the decrease, provided that such Products had been shipped to           Co-Host no more than ninety (90) days prior to such effective date. To           be eligible for such price protection, Co-Host must deliver to NAI           written evidence, signed by Co-Host, of an inventory of such Products           showing the number and location of each unit of Product for which           Co-Host claims price protection eligibility hereunder within thirty           (30) days of receiving notice of such price decreases. Such reduction           will constitute a credit on Co-Host's account for future orders from           NAI under this Agreement (unless the Agreement has terminated or           expired in which case such reduction will be refunded to the extent           that Co-Host does not owe NAI money) in an amount equal to the           difference between the net invoice price at which each such unit in           inventory was provided to Co-Host and the current price then           applicable for shipments of such Product to Co-Host hereunder.

  (e)  TAXES.

       (i)  All amounts payable by Co-Host to NAI under this Agreement are                exclusive of any tax, withholding tax, levy, or similar                governmental charge that may be assessed by any jurisdiction in                or outside the Territory except income and similar taxes levied                on and payable by NAI. Such taxes, withholding taxes, levies, and                governmental charges (collectively Taxes) include Taxes based                on sales, use, excise, import or export values/fees, value-added,                income, revenue, net worth, or may be the result of the delivery,                possession, or use of the Products, the execution or performance                of this Agreement or otherwise. Should any Taxes be due, Co-Host                agrees to pay such Taxes and indemnify NAI for any claim for

                                    5    20





            such Taxes demanded. Co-Host shall make no deduction from any                amounts owed to NAI for any Taxes. Co-Host covenants to NAI that                all Products distributed hereunder will be in the ordinary course                of Co-Host's business, and Co-Host agrees to provide NAI with                appropriate information and/or documentation satisfactory to the                applicable taxing authorities to substantiate any claim of                exemption from any Taxes.

       (ii) For all Taxes paid by Co-Host, Co-Host shall provide to NAI                within forty-five (45) days after the end of any quarter, a                certificate of tax payment documenting the payment and amount of                the Taxes paid during the preceding quarter.

6.   SHIPMENT, RISK OF LOSS AND DELIVERY.

  (a)  Shipment. All the physical Products will be shipped by NAI, F.C.A.           (Incoterms 1990) place of shipment. Co-Host is responsible for paying           all freight charges, transportation expenses, insurance charges, all           applicable taxes, duties, import and export fees and similar charges           associated with the delivery of the Products to Co-Host. All shipments           will be made using either any carrier approved by both Co-Host and           NAI. Co-Host will not without NAI's prior written consent, submit any           order calling for the shipment of a Product to more than a single           redistribution site.

  (b)  Risk of Loss. All risk of loss of or damage to the Products will pass           to Co-Host upon delivery by NAI to the common carrier. Co-Host will           bear the risk of loss or damage in transit.

  (c)  Partial Delivery. Unless Co-Host clearly advises NAI to the contrary           in writing NAI, may make partial shipments on account of Co-Host's           orders which shall, to be separately invoiced and paid for when due.

7.   RETURNS.

  (a)  Returned Merchandise Authorization. Notwithstanding anything to the           contrary herein contained, NAI will not issue credit to nor be           obligated to accept returns for any reason for any physical Products           unless NAI shall have previously issued a written Return Merchandise           Authorization (RMA). The preceding sentence governs whether or not           NAI is obligated to issue an RMA under this Agreement or applicable           law. RMAs must be in writing, signed by NAI and only authorize the           return of Products in good resalable conditions unless expressly           provided otherwise herein. If damaged goods are received pursuant to           an RMA, no credit shall be given by NAI with respect to such damaged           goods unless the RMA indicates otherwise. Co-Host shall be responsible           for all freight charges for goods returned pursuant to an RMA, unless           otherwise indicated herein or in the RMA.

  (b)  Customer Returns and Bad Box. Subject to Section 7 (a), Co-Host may,           during the term of this Agreement, obtain a credit against current or           future invoices from

                                    6    21

       NAI, for Products which have been returned by end users as defective,           or pursuant to the warranty stated in NAI's end user license. Such           credit will be in an amount equal to the original invoice price less           any discounts or other credits previously received. Co-Host shall also           have the ability to return for credit Products which have boxes that           are or become damaged, unless such damage was caused by Co-Host. An           offsetting purchase order must be placed for all bad box returns. In           the event of claims by end users of incomplete Product, NAI, at its           discretion, may supply to Co-Host, at no charge, any and all missing           materials which are supposed to be provided with the current release           of such Products or replace the entire Products in such situation.

  (c)  Discontinued Products. Co-Host may, during the term of this Agreement,           obtain a credit for the price paid by Co-Host to be applied against           current or future invoices, for all versions of Products shipped by           NAI within the previous ninety (90) days that NAI discontinues or           which are removed from NAI's current retail price list. Such credit           will be equal to the price paid by Co-Host for such obsolete Products,           less discounts received under Section 5 of this Agreements. All such           discontinued Products will be counted and inspected at the Inspection           Site by NAI's employee, and upon NAI's acceptance thereof (which will           be a condition of Co-Host's eligibility for a credit hereunder) such           Products will be promptly and completely destroyed or, if requested by           NAI, such Products or any portion thereof will be returned to NAI as           it directs. No Product shall be deemed discontinued if a later version           of the Product is still being offered by NAI and end users may obtain           the current version of such Product from NAI electronically at no           additional charge.

  (d)  Freight. Co-Host will pay all costs (including freight) associated           with the return of the Products to NAI and back to Co-Host as provided           herein, except that NAI will be responsible for all freight costs           associated with (i) the return of Products under Section 7(b), (ii)           the return of any discontinued or obsolete Products under Section           7(c), and (iii) the return of other Product updates agreed upon by NAI           and Co-Host.

8.   GENERAL.





  (a)  Co-Host agrees that it will not, directly or indirectly, export or           transmit the Product and technical data (or any part thereof) or any           process or service that is the direct product of the software and           documentation, to any group S or Z country specified in Supplement No.           1 of Section 770 of the Export Administration Regulations or to any           other country to which such export or transmission is restricted by           such regulation or statute, without the prior written consent, if           required, of the Office of Export Administration of the U.S.           Department of Commerce, or such other governmental entity as may have           jurisdiction over such export or transmission.

                                    7    22

  (b)  Co-Host acknowledges that some NAI Products hereto contain encryption           and some are export restricted (the Restricted Software) by the U.S.           Department of Commerce's Bureau of Export Administration (BXA).           Co-Host further acknowledges that for this reason, the export of such           items may subject the Co-Host or its executives to fines and/or other           severe penalties. Unless all required permits and/or approvals have           been obtained, Co-Host shall not export or re-export the Restricted           Software outside of the United States, whether directly or indirectly,           and will not cause, approve or otherwise facilitate others such as           agents, subsequent purchasers, licensees or any other third parties in           doing so. The parties agree to cooperate with each other with respect           to any application for any required licenses and approvals. However,           Co-Host acknowledges it is their ultimate responsibility to comply           with all export laws with respect to the Restricted Software and that           NAI has no further responsibility after the initial sale to the           Co-Host within the United States.

                                    8    23

                        EXHIBIT A TO EXHIBIT E

1.   PRODUCTS COVERED (RECITALS). Product(s) provided to Co-Host shall be all NAI Goods as that term is defined in Section 1 (c) of the Agreement and no other products.

2.   PRICES AND DISCOUNTS (SECTION 5(a)).

The standard discount or pricing granted to NAI's traditional Product distributors increased by four percentage points. 
Question: Highlight the parts (if any) of this contract related to Liquidated Damages that should be reviewed by a lawyer. Details: Does the contract contain a clause that would award either party liquidated damages for breach or a fee upon the termination of a contract (termination fee)?
[EX A]: Termination or expiration of this Agreement if by reason of material           breach by Co-Host shall not affect any of Co-Host's payment           obligations, all of which survive termination of this Agreement;           provided that, in (i) the event of termination of this Agreement by           Co-Host due to a material default by NAI, NAI shall pay to the Co-Host           the Liquidated Damages Amount (as defined in Part 2 of Exhibit "A

[EX Q]: Exhibit 10.13

COLLABORATION AGREEMENT

THIS COLLABORATION AGREEMENT (the Agreement) is entered into as of November 2, 2012 (the Effective Date) by and between BIOCEPT, INC., a California corporation having an address of 5810 Nancy Ridge Drive, Suite 150, San Diego, CA 92121 (Biocept), and LIFE TECHNOLOGIES  CORPORATION, a Delaware corporation having an address of 5791 Van Allen Way, Carlsbad, California 92008 (Life Technologies).

WHEREAS, Life Technologies, through its Medical Sciences Division, is engaged in the development and commercialization of diagnostic systems, tests and laboratory services, including in oncology;

WHEREAS, Biocept has developed expertise and proprietary technology in enrichment, extraction and analysis of circulating tumor cells (CTCs) for use in laboratory developed tests used for the non-invasive and early stage detection and characterization of primary, metastatic or recurrent cancers; and

WHEREAS, Life Technologies and Biocept desire to collaborate so that Biocept will develop and commercialize one or more Tests, as defined herein, for Non-Small Cell Lung Cancer (NSCLC), using their respective technologies and expertise, on the terms and subject to the conditions set forth herein. Life Technologies and Biocept will both promote the test and perform different components of the test, and Life Technologies will provide test results in the form of reports to physicians.

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants contained herein, and intending to be legally bound, the parties hereby agree as follows:   1. DEFINITIONS

1.1 Affiliate shall mean any company or entity controlled by, controlling, or under common control with a party hereto and shall include any company more than 50% of whose voting stock or participating profit interest is owned or controlled, directly or indirectly, by a party, and any company which owns or controls, directly or indirectly, more than 50% of the voting stock of a party.

1.2 Assay shall mean Biocept's OncoCEE-LU™ (and OncoCEE-LU™ with Mutation Analysis) laboratory developed assay for characterization and profiling of CTCs from NSCLC patients, which shall incorporate, as Phase 1, CTC enumeration by cytokeratin and CD45 (and CEE-Enhanced™ when available), EML4/Alk1 fusions and EGFR amplification by fluorescence in situ hybridization (determined by Biocept); and as Phase 2, the additional detection of mutations for relevant genes, e.g., K-RAS, EGFR and B-RAF, as agreed by the parties, on captured CTCs and/or cell-free circulating DNA, as agreed by the parties, and employing technologies that potentially may include Biocept's Selector technology, and any improvements or enhancements thereto, exclusive of new analytes (which are discussed in Section 3.5(f) under Collaboration Assays) or applications to primary screening.





1.3 Biocept Trademarks shall mean Biocept, Inc., OncoCEE-LU , OncoCEE™, CEE-Sure , CEE- Enhanced™, and/or such other trademarks and trade names owned or licensed, and used, by Biocept and/or its Affiliates in the Territory to identify the Tests, in each case, whether or not registered.

1.4 Life Technologies Trademarks, shall mean Life Technologies , Life Technologies Medical Sciences and/or such other trademarks and trade names owned or licensed and used by Life Technologies to identify the Tests, in each case, whether or not registered.

1.5 CLIA shall mean the Clinical Laboratory Improvement Amendments of 1988, as it may be amended from time to time.

1.6 Collaboration shall have the meaning provided Section 3.1.

1.7 Collaboration Assay(s) shall have the meaning provided in Section 3.5(e).

1.8 CPT Code shall mean the American Medical Association's (AMA) Current Procedural Terminology as published in the AMA's CPT Process Manual, Fourth Edition and any such future editions, for procedures used in performance of the Assay, and amounts reimbursed by Medicare for such procedures for location 99, as modified annually.

1.9 Designated Executive Officer shall mean the executive officers of each party designated in writing be each party as being responsible for resolving disputes related to the Collaboration, which shall initially be David Hale on behalf of Biocept and Ronnie Andrews on behalf of Life Technologies.

1.10 FDA shall mean the United States Food and Drug Administration, or any successor federal agency thereto.

1.11 HIPAA shall mean, collectively, the Health Insurance Portability and Accountability Act of 1996, as amended, and all regulations promulgated thereunder at 45 C.F.R. parts 160 through 164, and the Health Information Technology for Economic and Clinical Health Act of 2009 and related regulations and guidelines.

1.12 Intellectual Property Rights means all now or hereafter existing patents, patent applications, copyrights, trademarks (including service marks), trade secrets, know-how, mask work rights and design rights, whether registered or unregistered, and all rights or forms of protection of a similar nature having equivalent or similar effect to any of the foregoing, which may subsist anywhere in the world.

1.13 Launch shall mean formal commercial availability and offering to physicians of a Test, as mutually agreed upon by the parties.

1.14 Laws shall mean all federal, state and local laws and regulations that apply to this Agreement including, without limitation, (i) the Bayh-Dole Act (ii) the

2

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Federal Food, Drug, and Cosmetic Act (21 U.S.C § 321 et seq.) (iii) the federal Anti-kickback Statute (42 U.S.C. § 1320a- 7b(b)) (iv) the Stark Law (42 U.S.C. § 1395nn) (v) the Anti-Inducement Law (42 U.S.C. § 1320a-7a(a)(5)) (vi) the civil False Claims Act (31 U.S.C. §§ 3729 et seq.) (vii) the administrative False Claims Law (42 U.S.C. § 1320a-7b(a)) (viii) the Health Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d et seq.), (ix) the exclusion laws (x) SSA § 1128 (42 U.S.C. § 1320a-7) (xi) Medicare (Title XVIII of the Social Security Act), (xii) Medicaid (Title XIX of the Social Security Act); (xiii) the Clinical Laboratory Improvements Act of 1988 (CLIA); and (xiv) data security, protection and privacy laws in the applicable jurisdictions.

1.15 Professional Component shall mean the performance of the professional component of the steps of the Assay, which is the interpretation of results (generated in the Technical Component) of an Assay by a pathologist, and is covered by CPT codes from the Professional Fee Schedule with the modifier 26.

1.16 Technical Component shall mean the performance of the technical component of the steps of the Assay, which is the physical performance of the Assay procedure up to the interpretation of results, and is covered by CPT codes from the Professional Fee Schedule without the modifier 26, and typically with a modifier TC.

1.17 Term shall have the meaning provided in Section 11.1.

1.18 Test(s) shall mean the Assay, which is a laboratory developed test, and/or any Collaboration Assay which is added to this Agreement pursuant to Section 3.5(e), performed as a clinical reference laboratory test.

1.19 Territory shall mean the United States of America, and other countries of the world, contingent in the latter case on the parties agreeing in writing on an appropriate strategy to access them in accordance with Section 3.2.

1.20 Third Party(ies) shall mean any entity other than Biocept or Life Technologies or an Affiliate of Biocept or Life Technologies.   2. APPOINTMENT; LICENSES

2.1 Appointment. Upon the terms and conditions set forth in this Agreement, Biocept hereby grants Life Technologies during the Term the non-exclusive right, as further defined in Section 2.3, to promote the Tests in the Territory and to perform the Professional Component of the Tests sold by the parties in the Territory, in accordance with the terms of this Agreement.

2.2 Trademark Licenses. The parties hereby grant to each other non-exclusive, fully-paid, royalty-free licenses to utilize the other party's trademarks, as follows:

(a) Biocept Trademarks. To facilitate the promotion and performance of Tests, during the Term Biocept hereby grants Life Technologies a non-exclusive, royalty-free, non-transferable license to use the Biocept Trademarks solely for

3





use in connection with the promotion and performance of the Tests in the Territory. All materials associated with the Tests and used by Life Technologies in connection with the promotion of the Tests, including web-based, shall be co-branded with such Biocept Trademarks as approved by Biocept prior to distribution. All use of Biocept Trademarks by Life Technologies hereunder (including all goodwill arising as a result of such use) shall inure to the benefit of Biocept, and these rights, whether registered or not registered, at all times shall remain the sole property of Biocept. Biocept shall provide Life Technologies with copies of the Biocept Trademarks in an appropriate form for the uses contemplated in this Agreement. Life Technologies shall provide Biocept with samples of all proposed use of the Biocept Trademarks in advance of such proposed use and Biocept shall have the right to approve the appearance and placement of Biocept Trademarks by Life Technologies for the purpose of protecting and maintaining the standards of quality maintained by Biocept for products sold under the Biocept Trademarks and for use of the Biocept Trademarks. If Biocept at any time finds that Life Technologies is not in compliance with this Section, then Biocept may notify Life Technologies in writing of such deficiencies, and if Life Technologies fails to correct such deficiencies within thirty (30) days after receipt of such notice, Biocept may, at its election and in addition to any other remedies, terminate the license granted to Life Technologies with respect to the Biocept Trademarks. Life Technologies shall display the ™ or   symbol, as directed by Biocept, in connection with Life Technologies' use of the Biocept Trademarks.

(b) Life Technologies Trademarks. To facilitate the promotion and performance of Tests, during the Term Life Technologies hereby grants Biocept a non-exclusive, royalty-free, non-transferable license to use the Life Technologies Trademarks solely for use in connection with the promotion and performance of the Tests in the Territory. Materials associated with the Tests and used by Biocept in connection with the promotion of Tests, including web-based materials, may be co-branded with such Life Technologies Trademarks as approved by the parties prior to distribution. All use of Life Technologies Trademarks by Biocept hereunder including all goodwill arising as a result of such use) shall inure to the benefit of Life Technologies, and these rights, whether registered or not registered, at all times shall remain the sole property of Life Technologies. Life Technologies shall provide Biocept with copies of the Life Technologies Trademarks in an appropriate form for the uses contemplated in this Agreement. Biocept shall provide Life Technologies with samples of all proposed use of the Life Technologies Trademarks in advance of such proposed use and Life Technologies shall have the right to approve the appearance and placement of Life Technologies Trademarks by Biocept for the purpose of protecting and maintaining the standards of quality maintained by Life Technologies for products sold under the Life Technologies Trademarks and for use of the Life Technologies Trademarks. If Life Technologies at any time finds that Biocept is not in compliance with this Section, then Life Technologies may notify Biocept in writing of such deficiencies, and if Biocept fails to correct such deficiencies within thirty (30) days after receipt of such notice, Life Technologies may, at its election and in addition to any other remedies, terminate the license granted to Biocept with respect to the Life Technologies Trademarks. Biocept shall display the ™ or   symbol, as directed by Life Technologies, in connection with Biocept's use of the Life Technologies Trademarks.

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®

®





2.3 Exclusivity. During the Term, the parties will promote and perform Tests for the clinical testing market on a non- exclusive basis in the Territory, except as otherwise provided for below. Biocept will have sole responsibility for performing the Technical Component of all Tests sold by the parties, until and unless Life Technologies obtains the right from Biocept to independently develop its own Tests in accordance with all applicable FDA regulatory requirements, as provided for in Section 7.1. Life Technologies will be authorized to perform the Professional Component of all Tests sold by the parties, although Biocept may engage other groups in promotion, marketing and performance arrangements for the Tests, at the discretion of Biocept. Biocept shall provide thirty (30) days written notice to Life Technologies before entering into any such promotion, marketing and performance arrangement.   3. COLLABORATION

3.1 Purpose. During the Term, the parties agree to cooperate and collaborate to develop, promote and commercialize the Tests for the clinical testing market in the Territory and in accordance with the terms of this Agreement (the Collaboration). The principal objective of the parties hereunder is to maximize the commercialization of the Tests in the Territory. The parties shall deploy each of their respective sales forces in accordance with the terms of this Agreement in an effort to promote the Tests in the Territory in the manner as agreed to by the parties, under the direction of the Joint Steering Committee.

3.2 Commercialization of Tests Outside the USA. At any time for up to two (2) years after the Effective Date, should Life Technologies desire to offer for sale any Test outside the USA, it shall first discuss with Biocept an appropriate strategy and plan for such effort. Such strategy and plan may involve the development of, and obtaining all applicable regulatory authorizations for, an in vitro diagnostic kit, instruments or similar systems, in collaboration with Biocept (with funding support, and more fully described in Section 7.2), such strategy and plan to be reduced to writing and approved by the parties. If such written plan is not approved by the parties within two (2) years of the Effective Date, the Territory shall revert to only the USA, unless otherwise agreed to by the parties.

3.3 Life Technologies Responsibilities. Life Technologies shall use commercially reasonable efforts to promote the Tests in the Territory, in accordance with Section 3.2, using sales channels and methods, and adhering to substantially similar standards that it generally employs with respect to its laboratory developed tests. Without limiting the foregoing, Life Technologies' responsibilities with respect to marketing and promotion of the Tests in the Territory during the Term shall include the following:

(a) Life Technologies Customers. Life Technologies shall use commercially reasonable efforts to promote the Tests to the appropriate healthcare professionals.

5





(b) Test Performance. Life Technologies shall have the responsibility, subject to its capacity to support in its reasonable discretion (of which capacity Life Technologies shall notify Biocept in writing at least sixty (60) days before launch of the Assay, and use diligent efforts to notify Biocept at least thirty (30) days before discovery of any decreases or increases in such capacity), for performing the Professional Component of the Assays sold by either party in the Territory. In particular, the laboratory director of the Life Technologies CLIA laboratory will be responsible for issuing and signing off on the report.

(c) Sales, Marketing and Customer Service.

(i) Life Technologies shall, at its sole expense and in accordance with Section 2.2, develop and deliver to customers marketing materials for the Tests. Life Technologies shall use, as appropriate, Biocept's OncoCEE-LU , OncoCEE™, CEE-Enhanced™ and CEE-Sure brand and the Biocept corporate name and logo, together with any Life Technologies branding, as part of the marketing materials for the marketing of the Tests and, where appropriate, in its other public presentations and disclosures concerning the Assay or Tests. Biocept shall have the right to review all such materials prior to their initial use.

(ii) Life Technologies shall cause its sales force to use commercially reasonable efforts to promote the Tests.

(iii) Life Technologies shall use commercially reasonable efforts to promote the sale of the Tests by including the Tests in its menu of services and by incorporating marketing materials regarding the Tests into its own marketing materials.

(iv) Life Technologies shall keep Biocept reasonably informed of its planned marketing activities with respect to the Tests to allow Biocept to forecast its needs for reagents, equipment, laboratory space, personnel, computing, and testing reporting capabilities, including at each Joint Steering Committee meeting as indicated in Section 4, and will discuss and consider in good faith Biocept's suggestions for marketing the Tests.

(v) Life Technologies will provide customer service and support for the Professional Component of the Tests using substantially similar methods and adhering to substantially similar standards that it generally employs with respect to its other products and tests.

(d) Samples and Logistics.

(i) Life Technologies will be responsible for the logistics associated with its marketing efforts and performance of the Professional Components of the Tests; provided, however, that Biocept will send the sample collection systems directly to customers identified by Life Technologies who order the Test, at Life Technologies' expense. Biocept will further work with Life Technologies to facilitate transport of collected samples from the customer to Biocept's CLIA laboratory. Life

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Technologies will work collaboratively with Biocept on patient referral, billing and collections in accordance with Section 3.5(c) (iii), reporting of results and reporting quality control, and insurance or patient reimbursement.

(e) Demand Forecast. Within sixty (60) days of the Effective Date, Life Technologies will prepare a draft one-year rolling forecast of Life Technologies' expectation for physician requests for the Assay (the Demand Forecast), broken down into quarterly demand for the Assay (with respect to each quarter, the Quarterly Forecast) which will be attached hereto as Exhibit A, and will be finalized three (3) months before Launch. Beginning on the first day of the second (2 ) full calendar quarter following the date of Launch, the Demand Forecast shall be updated on a quarterly basis. The Demand Forecast and Quarterly Forecasts shall be a good faith but non-binding forecast. In the event the parties develop a Collaboration Assay under the terms of this Agreement, demand for such Collaboration Assay shall be included in the Demand Forecast at all times following the Launch of such Collaboration Assay. A Performance Standard, mutually agreed to in accordance with Section 3.5(i), shall take effect beginning with the second (2 ) full calendar quarter after the launch of any Test.

(f) Technical Developments. Life Technologies shall keep Biocept fully informed as to all discoveries and technical developments (including, without limitations, any inventions) made by Life Technologies during the Term related to the Assay or Tests.

(g) Billing, Reporting, Auditing.

(i) In all cases where Life Technologies performs the Professional Component of the Assay, Life Technologies shall be responsible for billing the patient, the provider and/or the payer for the Test, including both the Technical Component and the Professional Component of the Assay, and the collection of such amounts with respect to each Test performed. Biocept shall bill Life Technologies directly once a month for the Technical Component of each Assay (including the cost for sample collection in accordance with Section 3.5(b)), based on pricing and reimbursement as agreed by the parties through the Joint Steering Committee within sixty (60) days of the Effective Date, generally based on each applicable CPT Code actually used in the performance of such Technical Component, employing the Medicare rates for the applicable year as described on Exhibit B for the initial one (1) year period, and Life Technologies shall pay Biocept within sixty (60) days following the invoice date. The parties shall disclose actual reimbursement for each Test, and shall reconcile or true-up any differences between the amounts actually received by Life Technologies for each billing item or code and amounts paid to Biocept on a quarterly basis. If the allocation of reimbursement is ambiguous with respect to billing codes or a Technical Component/Professional Component split, amounts received by Life Technologies that differ from the amounts agreed by the parties, or Medicare rates, shall be shared by the parties on the same ratio as the Technical Component/Professional Component ratio for Medicare. The Medicare rates used by the parties as the basis for determining the amount Life Technologies will pay Biocept for the Technical Component of the Assay before the quarterly true-up will be adjusted annually at the beginning of the calendar year to reflect

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changes to such Medicare rates. Should Medicare change the basis for reimbursement of the Assay, the parties shall agree to negotiate a structure for revenue sharing that generally accomplishes the result achieved above. Both parties agree to strictly adhere to all applicable Laws with respect to billing practices.

(ii) This Section 3.3(g) shall survive any termination or expiration of this Agreement for at least twelve (12) months following the effective date of such termination or expiration.

3.4 Biocept Responsibilities. Biocept shall use commercially reasonable efforts to promote the sale of the Tests in the Territory, using at least the same sales channels and methods and adhering to at least the same standards that it generally employs with respect to its other clinical tests. Without limiting the foregoing, Biocept's responsibilities during the Term shall include the following:

(a) Biocept Customers. Biocept shall use commercially reasonable efforts to promote the Tests to appropriate healthcare professionals.

(b) Assay Performance. Biocept shall be responsible for performing all Technical Components of all Assays sold by either party unless and until the parties agree to enable Life Technologies to independently develop, validate and perform the Test at Life Technologies' CLIA laboratory, in accordance with all applicable FDA regulatory requirements and Section 7.1. Until such point of transfer, Biocept shall comply with all CLIA requirements, including validation of the Assay.

(c) Sales, Marketing and Customer Service.

(i) Biocept shall cause its sales force to promote the Assay.

(ii) Biocept shall keep Life Technologies reasonably informed of its planned marketing activities with respect to the Assay to allow Life Technologies to forecast its needs for equipment, space, personnel, computing, and test reporting capabilities, including at each Joint Steering Committee meeting as indicated in Section 4, and will discuss and consider in good faith Life Technologies' suggestions for marketing the Assay.

(iii) Biocept will provide customer service and support for the Assay using substantially similar methods and adhering to substantially similar standards that it generally employs with respect to its other tests.

(d) Samples and Logistics. Biocept will be responsible for the logistics associated with its own marketing efforts and performance of the Technical Component of the Assay, including distribution of shipping materials and sample collection systems by its sales representatives, patient referral and customer service.

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(e) Training and Education.

(i) Biocept shall provide sales and technical training and technical support, including assistance with customer education and customer consultations, to Life Technologies' personnel, with the frequency and content of the training to be determined by agreement between Biocept and Life Technologies.

(ii) Biocept will share its service educational materials and scientific publications to utilize in patient education with Life Technologies, and hereby grants Life Technologies rights to use such materials as are reasonably necessary for Life Technologies to carry out its obligations under this Agreement. Life Technologies may not alter or revise these materials without the prior written consent of Biocept.

(f) Regulatory Approval. Biocept has licenses enabling it to perform and obtain reimbursement for the Assay in all states in the Territory except New York, where it is currently seeking such license. Biocept will maintain all such licenses which are reasonably required to perform the Assay during the Term.  For any Collaboration Assay, Biocept will use commercially reasonable efforts to obtain or maintain licenses enabling it to perform such Collaboration Assay and obtain reimbursement therefore, in accordance with each amendment to this Agreement entered in accordance with Section 3.5(f). Life Technologies will cooperate with Biocept so that Life Technologies' marketing and sales efforts are conducted only in those states or regions of the Territory in which Biocept has obtained any necessary regulatory licenses to provide Tests.

(g) Technical Developments. Biocept shall keep Life Technologies fully informed as to all discoveries and technical developments (including, without limitations, any inventions) made by Biocept during the Term related to the Tests.

3.5 Joint Responsibilities. The parties shall use commercially reasonable efforts to cooperate and collaborate to develop the market for the Tests in the Territory. Without limiting the generality of the foregoing, the parties shall collaborate to provide the following:

(a) Test Development. The parties shall mutually agree on the content and composition of Phase II of the Assay, and any Collaboration Assays as defined in Section 3.5(f), including specific analytes to be included in the Assay. Consideration for selection of analytes shall include medical need, clinical utility, technical feasibility, costs, reimbursement, and intellectual property status, e.g., the need for Third Party licenses to specific analytes. The parties shall agree on the Phase II Assay content at least six (6) months before anticipated Launch.

(b) Test Materials and Shipping. Subject to Section 3.3(c)(i), Life Technologies shall design and order all test materials, including test requisition forms, test reports and collateral sales and marketing (advertising and promotional) materials to be used by Life Technologies, which shall be approved by Biocept prior to use. Biocept shall design, order and provide to Life Technologies the collection systems to be used by Life Technologies, and Life Technologies shall pay for such collection systems used by

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its sales representatives under this Agreement at cost (direct materials and direct labor) plus ten percent (10%), as well as shipping costs of collection systems from ordering physicians to Biocept.

(c) Performance of Tests.

(i) The parties will work together to develop a plan to implement detailed operation protocols for the Test within ninety (90) days of the Effective Date for each aspect of sample logistics, including ordering, shipping, accessioning, sample handling, testing, data generation, data evaluation and reporting. These sample logistics shall be agreed upon by the parties through the Joint Steering Committee and, once agreed upon by the parties in writing, deemed to be attached hereto as Exhibit C without any additional action required on the part of either party. Information, data and images shall be transferred between the parties as indicated for this purpose, and the parties will seek to make their respective laboratory information management systems and data transfer capabilities compatible. Life Technologies' lab director at the CLIA lab will sign off on the reports for Tests.

(ii) If Life Technologies desires to utilize the Tests in support of any clinical trial or research program for a pharmaceutical or biotechnology company(ies) in the Territory, Life Technologies shall notify Biocept in writing of such desired use. The terms and conditions (including pricing and revenue sharing) of each such use shall be covered by a separate written agreement which the parties agree to negotiate in good faith.

(iii) Each party will use commercially reasonable efforts to support the other in the account to best meet the needs and expectations of each customer.

(d) Communication Plan. Life Technologies and Biocept shall develop a communications plan through the Joint Steering Committee for the announcement and ongoing promotion of the Tests to customers, with all communication plan materials, including test requisition forms, being co-branded with Biocept and Life Technologies corporate names and logos in accordance with Sections 2.2 and 3.3(c)(i).

(e) Data Sharing. Life Technologies and Biocept have entered into this Agreement to, among other things, establish individual databases of results from the Tests performed, which databases will include patient information such as demographic, disease characterization, treatment and outcome information. To that end, to the extent permitted by applicable law and as mutually agreed by the parties, where available each party will share all patient data, Test data and results, and corresponding tissue data with the other party, as well as any follow up or outcome data that may become available or provided by the physician or patient for Tests performed and will cooperate in good faith with the other party to agree upon procedures for sharing such information. Such information may be used only for longitudinal reporting, outcomes correlation and related research, shall be handled in accordance with all applicable Laws, including, without limitation, HIPAA, and applicable institutional review board guidelines, and shall not be used for the purpose of obtaining information about the other party's clients or customers. To the extent feasible, all such information will be properly de-identified.

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(f) Collaboration Assays. During the Term, Biocept shall keep Life Technologies reasonably apprised of its plans to add analytes to the Assay. In addition, Life Technologies may desire for Biocept to develop a specific new analytes for the Assay (for example, the inclusion of additional mutations to the mutation analysis component of the Assay), to be offered by the parties as an additional Test under this Agreement. In either case, the parties shall negotiate in good faith an amendment to this Agreement that will govern the development (as needed) and commercialization of such Tests with new analytes (each a Collaboration Assay), which amendment may include financial support, contributions of and access to each party's technology and/or clinical samples, milestones, timing of the development effort, exclusivity and ownership rights. Any such agreed upon Collaboration Assay development shall be performed by Biocept or jointly as the parties may agree. Once the parties have agreed upon a plan relating to the development of a particular Collaboration Assay, if development is needed (each, a Project), the parties shall reduce such agreement to writing, which shall include a project plan which will set forth each party's obligations with respect to the Project (each, a Project Plan) and thereafter, such Collaboration Assay shall be deemed a Test for all purposes under this Agreement and shall be subject to the terms of this Agreement as amended. Each such Project Plan shall be attached as a part of Exhibit D to this Agreement following written acceptance thereof by both parties without any additional action required on the part of either party. Any amendments or revisions to a Project Plan shall be mutually agreed upon by the parties in writing.

(g) Costs and Expenses. Unless otherwise specified herein or in a Project Plan attached hereto, each party shall perform its activities under this Agreement at its sole cost and expense.

(h) Training and Education.

(i) The parties shall work together to develop and implement a training program for client services and the sales and marketing representatives of each party to ensure that a clear and consistent message is delivered to all prospective customers. Following such implementation, each party agrees to train its client services and sales and marketing representatives in accordance with such training program.

(ii) Representatives of each party, where deployed, shall each educate physicians, clinical and support personnel on the Tests, their applications and benefits, and the procedures for providing samples for the Tests. The Joint Steering Committee will approve all presentation and meeting materials. In addition, the parties will each be responsible for providing customer support related to test logistics, billing and reimbursement, and for establishing a call center to handle inquiries related to the Tests. For purposes of clarity, the parties acknowledge and agree that Life Technologies will not be required to establish a dedicated web portal, but all results of Tests will be made available through an existing Life Technologies portal solution, once commercially available for use, as determined by Life Technologies at its sole discretion. Technical or

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process questions regarding the Tests received by Life Technologies can be referred to Biocept. Each party will cover its own costs related to physician education, customer support, and any travel related thereto and comply with all federal and state regulations regarding the same.

(i) Performance Standards. Each party shall conduct its activities under this Agreement and any Project Plan in a professional and workmanlike manner, and in compliance in all material respects with the requirements of applicable Laws and regulations, to attempt to achieve the objectives of this Agreement efficiently and expeditiously. Each party shall contribute such personnel and resources, and shall maintain such laboratories and other facilities, as are reasonably necessary to carry out the activities to be performed under this Agreement, including any Project Plans. In conformity with standard industry practices and the terms and conditions of this Agreement, each party shall prepare and maintain, or shall cause to be prepared and maintained, complete and accurate written records, accounts, notes, reports and data with respect to activities conducted by such party under this Agreement, including any Project Plans. In addition, the parties shall work together to establish minimum agreed upon performance standards with respect to the promotion, sales and performance of the Tests, including the Demand Forecast, and the timely supply, accuracy, reliability and reporting of the Tests, as well as responsiveness to customer inquiries related to the Tests throughout the Territory (collectively, Performance Standards). In the event that one or more Performance Standards are not met by a party, the parties will work quickly and efficiently to (i) identify the cause of the failure, (ii) develop a plan to remediate the issue, and (iii) implement the remediation plan. If the parties are unable to successfully resolve a Performance Standards issue by this procedure, such failure to maintain Performance Standards shall constitute a material breach by the party failing to maintain such Performance Standards, and the other party may terminate this Agreement in accordance with Section 11.2.

(j) Bundling. Neither party shall bundle its assays (including the Tests) with any assays of the other party, without the prior written approval of that party.   4. JOINT STEERING COMMITTEE

4.1 Purpose and Membership. Promptly following the Effective Date, Biocept and Life Technologies will create a Joint Steering Committee for the purpose of facilitating communications between the parties regarding, and providing direction and leadership to, the Collaboration. The Joint Steering Committee shall be composed of six (6) representatives, three (3) each from Biocept and Life Technologies, each of whom shall have appropriate experience, knowledge and authority within such party's organization to carry out the duties and obligations of the Joint Steering Committee. Each party will designate one of its representatives as the primary contact for that party with respect to Joint Steering Committee-related matters, and such representatives shall serve as co-chairpersons of the Joint Steering Committee. Each party may change its representatives to the Joint Steering Committee or its primary contact from time to time in its sole discretion, effective upon notice to the other party of such change. These representatives shall have appropriate technical credentials, experience and knowledge. A reasonable number of additional representatives of a party may attend meetings of the Joint Steering Committee in a non-voting capacity.

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4.2 Duties. The Joint Steering Committee shall meet in person or by teleconference or videoconference no less than monthly during the Term or as otherwise mutually agreed by the parties from time to time, with attendees other than Joint Steering Committee members permitted to participate in or observe the meetings. The Joint Steering Committee shall be responsible for (a) monitoring the progress of the Collaboration, including discussions relating to Collaboration Assays, (b) physician education with respect to the Tests, (c) marketing, sales and account coordination, (d) any regulatory inquiries or requirements and other issues that affect the availability of the Tests, and (e) reimbursement issues (including annual review of relevant CPT Codes and changes thereto), logistical considerations, and other topics as necessary. The Joint Steering Committee shall serve as the principal forum for each party to (i) keep the other party informed of the results of its Collaboration activities; (ii) to discuss Test commercialization strategies, and (iii) generally to encourage and facilitate ongoing cooperation between the parties with respect to the Collaboration, including the business relationship and/or any other matter relating to the Collaboration and resolving disputes between the parties with respect to Intellectual Property Rights; provided, however, that (A) nothing in this Agreement shall limit either party's right to seek immediate equitable or injunctive relief where appropriate without any obligation to first submit the dispute to the Joint Steering Committee; and (B) any decision concerning medical necessity and patient care with respect to Test sold by or performed on behalf of the parties shall be the responsibility of each party's Medical Director, with the two Medical Directors working together to coordinate efforts and address concerns.

4.3 Decisions; Disputes. Decisions of the Joint Steering Committee shall be made by unanimous vote, with each party's representatives on the Joint Steering Committee collectively having one vote. In the event that the Joint Steering Committee cannot or does not, after good faith efforts, reach agreement on an issue, such issue shall first be referred to the Designated Executive Officers, who shall meet promptly thereafter and shall attempt in good faith to resolve such issue. In the event that the Designated Executive Officers cannot or do not, after good faith efforts, reach agreement on an issue, the issue shall be submitted to voluntary mediation. The Designated Executive Officers of each party shall select a mediator who is an expert with no less than seven years of experience in the subject matter to which the dispute relates. In the event that the Designated Executive Officers of the parties are unable to agree upon a mediator within twenty (20) days, then the Designated Executive Officers shall contact the San Diego County office of JAMS to select a mediator from the JAMS panel. If they are unable to agree, JAMS shall provide a list of three available mediators and each party may strike one. The remaining one will serve as the mediator. The mediation shall be conducted under JAMS rules. The parties agree that they shall share equally the cost of the mediation filing and hearing fees, and the cost of the mediators that constitute the panel. Each party shall bear its own attorneys' and expert fees and all associated costs and expenses.

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5. REGULATORY COMPLIANCE

5.1 Compliance with Laws. Biocept and Life Technologies and their respective Affiliates each agree to perform their respective obligations under this Agreement in compliance with all applicable Laws, in the Territory, including but not limited to applicable regulations, rules, and policies of third party payers that pay for the Assay.

5.2 Privacy. Biocept and Life Technologies and their respective Affiliates agree to protect the privacy and provide for the security of any information that relates to a patient's past, present, or future physical or mental health or condition in accordance with HIPAA, and any other applicable federal and state privacy laws and regulations in the Territory. Each party agrees to execute one or more Business Associate Agreements (as defined under HIPAA) as the other party, or its providers or payers, may from time to time request.

5.3 Licenses and Certifications. Biocept and, to the extent applicable, Life Technologies shall have at all times during the Term, all necessary federal, state and local licenses, qualifications and certifications to operate a laboratory and perform their respective components of the Test(s), including, but not limited to, state laboratory licenses, CLIA certification, CAP (College of American Pathologists) certification, FDA registration, and any other licenses or certification required by state and/or federal law. All Assays performed by Biocept, and, to the extent applicable, Life Technologies, shall be in accordance with applicable state and federal testing requirements for clinical reference laboratories.   6. MATERIALS TRANSFER

In order to facilitate the Collaboration, either party may provide to the other party certain biological materials or chemical compounds including, but not limited to, samples (collectively, Materials) for use by the other party in furtherance of the Collaboration. Except as expressly provided under this Agreement, all such Materials delivered to the other party will remain the sole property of the supplying party, will be used only in furtherance of the Collaboration and solely under the control of the other party, will not be used or delivered to or for the benefit of any Third Party without the prior written consent of the supplying party, and will not be used in research or testing involving human subjects except as permitted by applicable law. The Materials supplied hereunder must be used with prudence and appropriate caution in any experimental work and in accordance with all applicable laws.   7. OPTIONS AND FUTURE DISCUSSIONS

7.1 Option to License Assay. If Biocept does not obtain at least ten million dollars ($10,000,000) in equity financing by December 31, 2012, then Life Technologies shall have the non-exclusive option, exercisable by written notice to Biocept given no later than January 15, 2013, to negotiate with Biocept for a license (unless the parties mutually agree to a different transaction structure) to all necessary Intellectual Property

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Rights and know-how to independently commercialize the Assay in accordance with applicable Laws. Biocept will provide notice to Life Technologies on December 31, 2012 if the conditions for the option apply, and if Life Technologies delivers written notice of exercise of such right of negotiation to Biocept on or before January 15, 2013, the parties will negotiate in good faith to conclude a license agreement no later than February 28, 2013. If such license has not been entered into by the parties by February 28, 2013, there are no further obligations for either party under this Section 7.1.

7.2 Option for System Development. The parties have discussed potential adaptation of the Assay to an in vitro diagnostic format, based on a system concept that could include specially manufactured equipment, consumables and reagents that would be sold to physicians and laboratories, and linked to the informatics engine that Life Technologies is developing. Such systems may be used to commercialize the Assay outside the USA. Biocept grants to Life Technologies a non-exclusive option, exercisable during the two (2) year period beginning on the Effective Date, to develop plans, and negotiate with Biocept, for the co-development with Biocept of such systems for the Assay, employing or based on Biocept technologies. Such agreement is expected to include some or all of the following components: an upfront license fee, R&D funding, development and commercial milestone payments, royalties and/or revenue sharing, and supply/sale to Life Technologies by Biocept of proprietary components and consumables.   8. INTELLECTUAL PROPERTY

8.1 Existing Technology. Each party acknowledges that the other party owns certain technology and Intellectual Property Rights which have been independently developed by, or at the request of, such other party, whether prior to, during or subsequent to the Term. Except as expressly provided in this Agreement, neither this Agreement nor the activities performed hereunder, shall give either party any rights or interest in or to the technology or Intellectual Property Rights of the other party (or of any Materials provided by such party). Each party owns, and shall continue to own, all right, title and interest in and to its respective technology, including, without limitation, all Intellectual Property Rights relating thereto. Without limiting the generality of the foregoing, at all times during and after the Term, Biocept shall own all rights to its CEE™ technology, Selector technology (if utilized) and any improvements related thereto, generated during the performance of this Agreement. Biocept and Life Technologies shall promptly notify the other in writing upon becoming aware of any alleged or threatened third party infringement of any Intellectual Property Rights related to the Tests. Biocept shall have the right to bring and control any action or proceeding with respect to any such infringement at its own expense and by counsel of its own choice. If Biocept elects not to bring any such action or proceeding with respect to such infringement, it shall promptly notify Life Technologies of the same and agrees to consider, in good faith a request by Life Technologies to bring any such action or proceeding. Any agreement allowing Life Technologies to bring such action or proceeding on behalf of Biocept shall be set forth in a separate written agreement between the parties. Except as expressly provided above, the parties shall be under no obligation to enforce any of their Intellectual Property Rights against any actual or threatened Third Party infringements.

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8.2 Biocept Technology. Without limiting the generality of the foregoing, Biocept owns, and Life Technologies acknowledges Biocept's ownership of, (i) the Assay and the Selector technology, and (ii) all Intellectual Property Rights in the Assay and the Selector technology, and Life Technologies agrees that it shall not do or suffer to be done any act or thing or undertake any action anywhere that in any manner might infringe, or impair the validity, scope, or title of Biocept in the Assay, the Selector technology or Intellectual Property Rights owned by Biocept. Nothing herein shall limit Life Technologies' ability to prosecute fully any and all Intellectual Property Rights owned by Life Technologies with any patent office or related government agency or to respond fully to any government agency inquiry with respect to its Intellectual Property Rights, products, and services.

8.3 New Technology. In the course of the activities conducted by the parties, Biocept and/or Life Technologies may conceive of inventions or discoveries or create works that constitute intellectual property and may be patentable or registerable as a copyright or other intellectual property right (all of the foregoing, including such intellectual property rights therein, collectively, Developments). Inventorship of all inventions and discoveries, whether or not patentable, will be determined in accordance with United States patent laws. Authorship of all copyrightable works will be determined in accordance with United States copyright laws. Subject to Section 8.2, as between the parties, Developments will be owned consistent with such determination of inventorship or authorship. To the extent any Development owned by Life Technologies relates directly to the practice of, or constitutes an improvement to, the Assay, Life Technologies hereby grants to Biocept, during the Term of this Agreement, and, except in the case of termination of this Agreement by Life Technologies for Biocept's uncured material breach, after expiration or termination of this Agreement, a non-exclusive, worldwide, royalty-free, fully-paid license, including the right to sublicense, under Life Technologies' Intellectual Property Rights in such Developments, solely to develop, make, have made, use, sell, have sold, offer for sale, import, perform and provide the Assay. To the extent any Development owned by Biocept relates directly to the practice of, or constitutes an improvement to, the Assay, Biocept hereby grants to Life Technologies, during the Term of this Agreement, a non-exclusive license under Biocept's Intellectual Property Rights in such Development, solely to promote the Assay in the Territory and to perform the Professional Component of the Assay sold by the parties in the Territory, in accordance with the terms of this Agreement.

8.4 Technology Licenses. To the extent that any Third Party Intellectual Property Rights related to the capture and detection of CTCs must be licensed to perform the Assay, such royalty shall be paid by Biocept. To the extent that either party owns Intellectual Property Rights to specific biomarkers, targets, kits, dyes or technology utilized in the Assay other than for the capture and detection of CTCs, it will, to the extent it is able, grant during the Term of the Agreement, a non-exclusive license to the other party to practice these Intellectual Property Rights for the Assay. To the extent that either party has licensed or will license Intellectual Property Rights from Third Parties related to specific biomarkers, targets, kits, dyes or technology utilized in the Assay other than for the capture and detection of CTCs, it will, to the extent it is able, grant, during the Term of the Agreement, a non-exclusive license to the other party, or ensure that the

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other party is covered under its license, to practice these Intellectual Property Rights for the Assay. In the event of the foregoing, then, subject to Section 8.5, the parties agree to negotiate in good faith an allocation of expenses for such Third Party licenses directly associated with the Assay.

8.5 Infringement. If any Third Party claims or brings an action alleging that performance of the Assay or Test by Biocept or Life Technologies or their Affiliates under this Agreement infringe (directly or indirectly) any of such Third Party's patent rights, Biocept shall use commercially reasonable efforts to address such claims. If Biocept determines to seek a license or otherwise obtain the right to use such Third Party intellectual property rights on behalf of Biocept and Life Technologies, then (i) if the Third Party intellectual property rights relate to the capture and detection of CTCs or the Phase I Assay analytes, then Biocept shall bear the costs of such licenses, including the payment of licensing fees, royalties or other payments, or (ii) if the Third Party intellectual property rights relate to specific biomarkers, targets, kits, dyes or technologies for the Phase II Assay, then the parties agree to negotiate in good faith an allocation of costs for such licenses, including payment of licensing fees, royalties or other payments that may be due to such Third Party, unless the parties agree otherwise in writing. If Biocept and Life Technologies determine to seek a license or otherwise obtain rights to use Third Party intellectual property rights for any Collaboration Assay(s), the parties similarly agree to negotiate in good faith an allocation of costs for such licenses, including payment of licensing fees, royalties or other payments that may be due to such Third Party, unless the parties agree otherwise in writing.

8.6 Data and Results. All data and results from performance of a Test on samples provided by Life Technologies shall be used by the parties solely to the extent necessary to perform its obligations under this Agreement and in accordance with Section 3.5(d).

8.7 Trademarks.

(a) Biocept shall be responsible for and bear the expense of any filing, prosecution, maintenance and enforcement of the Biocept Trademarks as it may determine in its sole discretion, without obligation. Life Technologies shall not, during the Term or thereafter, use or seek to register the trademarks or any trademark or trade name similar to or confusing with the Biocept Trademarks, or any translation thereof, in any jurisdiction. Life Technologies agrees that, if Life Technologies at any time obtains, in any jurisdiction, any right, title or interest in any mark, symbol or phrase which shall be identical to, similar to or likely to be confused with any Biocept Trademark or any translation thereof, then Life Technologies shall have acted or shall act as an agent and for the benefit of Biocept for the limited purpose of obtaining such registrations and assigning such registration (and all right, title and interest in such mark, symbol or phrase) to Biocept.

(b) Life Technologies shall be responsible for and bear the expense of any filing, prosecution, maintenance and enforcement of the Life Technologies Trademarks as it may determine in its sole discretion, without obligation. Biocept shall

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not, during the Term or thereafter, use or seek to register the trademarks or any trademark or trade name similar to or confusing with the Life Technologies Trademarks, or any translation thereof, in any jurisdiction. Biocept agrees that, if Biocept at any time obtains, in any jurisdiction, any right, title or interest in any mark, symbol or phrase which shall be identical to, similar to or likely to be confused with any Life Technologies Trademark or any translation thereof, then Biocept shall have acted or shall act as an agent and for the benefit of Life Technologies for the limited purpose of obtaining such registrations and assigning such registration (and all right, title and interest in such mark, symbol or phrase) to Life Technologies.   9. REPRESENTATIONS AND WARRANTIES

9.1 Mutual Representations and Warranties. Each party represents and warrants to the other that: (a) it is duly organized and validly existing under the laws of its jurisdiction of incorporation or formation, and has full corporate power and authority to enter into this Agreement and to carry out the provisions hereof; (b) it is duly authorized to execute and deliver this Agreement and to perform its obligations hereunder, and the person or persons executing this Agreement on its behalf has been duly authorized to do so by all requisite corporate action; (c) this Agreement is legally binding upon it, enforceable in accordance with its terms; and (d) the execution, delivery and performance of this Agreement by it does not conflict with any agreement, instrument or understanding, oral or written, to which it is a party or by which it may be bound, nor violate any material law or regulation of any court, governmental body or administrative or other agency having jurisdiction over it.

9.2 Biocept Warranties on Assay.

(a) As of the Effective Date, the Assay employs Biocept's most current CTC-based technology, and will be validated for performing CTC enumeration and the detection of the indicated analytes in the Assay on a timeline as agreed by the parties within sixty (60) days of the Effective Date.

(b) Biocept represents and warrants to Life Technologies that: (1) the Assay constitutes an original work of Biocept; and (2) except as previously disclosed to Life Technologies, Biocept is the lawful owner or licensee of all materials used in connection with the development of the Assay, and Biocept has the rights to make, use and sell the Assay, and to allow Life Technologies to use the results of the Technical Component of the Assay to perform the Professional Component of the Assay, and to sell the Assay.

(c) Biocept has full power and authority and has obtained all Third Party consents, approvals, assignments and/or other authorizations required to enter into this Agreement and to carry out its obligations hereunder.

(d) There are no existing contracts, agreements, commitments, proposals, offers, or rights with, to, or in any person to acquire any of the rights under the Assay which would prevent or materially and adversely alter the performance of the obligations hereunder.

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9.3 Third Party Infringement. In the event that the Tests, or any part thereof becomes the subject of any claim, suit or proceeding for infringement of the Intellectual Property Rights of any Third Party, or if the Test, or any part thereof, is held or otherwise determined to infringe any Intellectual Property Rights of any Third Party such that Biocept can no longer perform its obligations under this Agreement, Biocept shall in its sole discretion either: (1) secure for itself and Life Technologies the right to continue using the Test in accordance with Section 8.4; (2) replace or modify the Test to make it non-infringing without degrading its performance or utility; or (3) notify Life Technologies that it will perform neither (1) nor (2), in which case either party shall thereafter have the right to terminate this Agreement immediately upon written notice to the other party. Notwithstanding the foregoing, and subject to Section 8.5, the indemnification rights of Life Technologies with respect to the Tests as set forth in Section 12.2 shall survive such termination.

9.4 Disclaimer. Except as expressly set forth herein, THE TECHNOLOGY, MATERIALS AND INTELLECTUAL PROPERTY RIGHTS PROVIDED BY EACH PARTY HEREUNDER ARE PROVIDED AS IS, AND EACH PARTY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON- INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES, OR ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICES.

9.5 Limitation of Liability. NEITHER PARTY SHALL BE ENTITLED TO RECOVER FROM THE OTHER PARTY ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES IN CONNECTION WITH THIS AGREEMENT OR ANY LICENSE GRANTED HEREUNDER; provided, however, that this Section shall neither (a) apply to any liability for damages arising from breach of any obligations of confidentiality under Article 10, nor (b) limit the indemnification obligations of the parties arising under Article 12 of this Agreement.   10. CONFIDENTIALITY

10.1 Confidential Information. Except to the extent expressly authorized by this Agreement or otherwise agreed in writing by the parties, each party agrees that, during the Term and for five (5) years thereafter, such party (the Receiving Party) shall keep confidential and shall not publish or otherwise disclose and shall not use for any purpose, other than as expressly provided for in this Agreement, any information furnished to it by or on behalf of the other party (the Disclosing Party) pursuant to this Agreement (collectively, Confidential Information). The Receiving Party may use such Confidential Information only to the extent required to accomplish the purposes of this Agreement. The Receiving Party will use at least the same standard of care as it uses to protect proprietary or confidential information of its own to ensure that its, and its Affiliates', employees, agents, consultants and other representatives do not disclose or make any unauthorized use of the Confidential Information. The Receiving Party will promptly notify the Disclosing Party upon discovery of any unauthorized use or disclosure of the Disclosing Party's Confidential Information.

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10.2 Exceptions. Confidential Information shall not include any information which the Receiving Party can prove by competent evidence: (a) is now, or hereafter becomes, through no act or failure to act on the part of the Receiving Party, generally known or available; (b) is known by the Receiving Party at the time of receiving such information, as evidenced by its 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 independently discovered or developed by the Receiving Party, without the use of Confidential Information of the Disclosing Party, as evidenced by the Receiving Party's written records maintained in the ordinary course of business.

10.3 Authorized Disclosure. Each party may disclose Confidential Information of the other party as expressly permitted by this Agreement, or if and to the extent such disclosure is reasonably necessary in the following instances:

(a) enforcing such party's rights under this Agreement;

(b) prosecuting or defending litigation as permitted by this Agreement;

(c) complying with applicable court orders or governmental regulations;

(d) disclosure to Affiliates, contractors, employees and consultants who need to know such information for the development and commercialization of the Test in accordance with this Agreement, on the condition that any such Third Parties agree to be bound by confidentiality and non-use obligations that are no less stringent than the terms of this Agreement; and

(e) disclosure to Third Parties in connection with due diligence or similar investigations by such Third Parties, and disclosure to potential Third Party investors in confidential financing documents, provided, in each case, that any such Third Party agrees to be bound by reasonable obligations of confidentiality and non-use.

Notwithstanding the foregoing, in the event a party is required to make a disclosure of the other party's Confidential Information pursuant to Section 10.3(b) or Section 10.3(c), it will, except where impracticable, give reasonable advance notice to the other party of such disclosure and use efforts to secure confidential treatment of such information at least as diligent as such party would use to protect its own confidential information, but in no event less than reasonable efforts. In any event, the parties agree to take all reasonable action to avoid disclosure of Confidential Information hereunder.

10.4 Confidentiality of this Agreement. Except as otherwise provided in this Section 10, each party agrees not to disclose to any Third Party the terms of this Agreement without the prior written consent of the other party hereto, except that each party may disclose the terms of this Agreement that are otherwise made public prior to the date of such disclosure or to the extent such disclosure is permitted under Section 10.3.

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10.5 Press Releases; Public Announcements. Neither party shall make a press release or public announcement that includes information relating to the Collaboration without the approval of the other party. At least five (5) days prior to any such press release or public announcement the party proposing to make such press release or public announcement (the Releasing Party) shall provide to the other party a draft copy thereof for its review and approval. The Releasing Party may not distribute such press release or public announcement without obtaining the other party's prior written approval. In addition, the Releasing Party shall, at the other party's request, remove therefrom any Confidential Information of such other party. The contribution of each party shall be noted in all scientific publications or presentations by acknowledgment or co-authorship, whichever is appropriate.   11. TERM AND TERMINATION

11.1 Term. The term of this Agreement will commence on the Effective Date and continue for a period of three (3) years after the Effective Date (the Initial Term). Thereafter, this Agreement can be renewed by mutual written agreement of the parties for successive one (1) year periods (each, a Renewal Term and together with the Initial Term, the Term).

11.2 Termination.

(a) Material Breach. Either party shall have the right to terminate this Agreement before the end of the Term upon written notice to the other party if such other party is in material breach of this Agreement and has not cured such breach within sixty (60) days (the Cure Period) after notice from the terminating party requesting cure of the breach. Any such termination shall become effective at the end of such Cure Period unless the breaching party has cured such breach prior to the end of such Cure Period. Any right to terminate under this Section 11.2(a) shall be stayed and the Cure Period tolled in the event that, during any Cure Period, the party alleged to have been in material breach shall have initiated dispute resolution in accordance with Article 13 with respect to the alleged breach, which stay and tolling shall continue until such dispute resolution procedures have been completed in accordance with Article 13. Nothing herein is intended to prevent either party from seeking immediate equitable or injunctive relief.

(b) Termination for Convenience. Both parties shall have the right to terminate this Agreement at any time, for any or for no reason, upon one hundred twenty (120) days written notice to the other party. In the event a party undergoes a Change of Control Event as defined in Section 14.5, the other party may terminate the Agreement upon thirty (30) days written notice to the party undergoing the Change of Control.

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11.3 Effect of Termination; Surviving Obligations.

(a) Upon any termination or expiration of this Agreement, all licenses granted hereunder shall automatically terminate and revert to the granting party and all other rights and obligations of the parties under this Agreement shall terminate, except as provided in Sections 11.3(b) and 11.4.

(b) Upon termination or expiration of this Agreement, each party will use their best efforts to return to the other party or destroy all tangible copies of the other party's Confidential Information in such party's possession or control and will erase from its computer systems all electronic copies thereof; provided, however, that each party may retain one archival copy of the other party's Confidential Information solely for purposes of monitoring compliance with its obligations under Article 10 hereof.

11.4 Survival. Expiration or early termination of this Agreement shall not relieve either party of any obligation accruing prior to such expiration or termination. In addition, Sections 3.3(g), 4.3, 5.1, 5.2 (to the extent required by law) 9.1, 9.2, 9.3, 9.5, 11.3 and 11.4, and Articles 1, 8, 10, 12, 13 and 14 will survive any expiration or termination of this Agreement.   12. INDEMNIFICATION

12.1 Indemnification by Life Technologies. Life Technologies hereby agrees to defend, indemnify and hold harmless Biocept, its Affiliates and their respective officers, directors, employees, consultants and agents (the Biocept Indemnitees), from and against any and all losses, damages, liabilities, expenses and costs, including reasonable legal expense and attorneys' fees resulting from any threat, claim, demand, action or other proceeding by any Third Party (Losses) to the extent such Losses arise directly or indirectly out of: (a) the gross negligence or willful misconduct of any Life Technologies Indemnitee (defined below); (b) the material breach by Life Technologies of any warranty, representation, covenant or agreement made by it in this Agreement; or (c) the performance by Life Technologies of the Professional Component; except, in each case, to the extent such Losses result from the gross negligence or willful misconduct of any Biocept Indemnitee or the material breach by Biocept of any warranty, representation, covenant or agreement made by it in this Agreement.

12.2 Indemnification by Biocept. Biocept hereby agrees to defend, indemnify and hold harmless Life Technologies, its Affiliates and their respective officers, directors, employees, consultants and agents (the Life Technologies Indemnitees), from and against any and all Losses to the extent such Losses arise directly or indirectly out of: (a) the gross negligence or willful misconduct of any Biocept Indemnitee; (b) the material breach by Biocept of any warranty, representation, covenant or agreement made by it in this Agreement; or (c) the performance by Biocept of the Technical Component of the Assay or Test; except, in each case, to the extent such Losses result from the gross negligence or willful misconduct of any Life Technologies Indemnitee or the material breach by Life Technologies of any warranty, representation, covenant or agreement made by it in this Agreement.

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12.3 Procedure. In the event a party seeks indemnification under Section 12.1 or 12.2, it shall inform the other party (the Indemnifying Party) of a claim as soon as reasonably practicable after such party (the Indemnified Party) receives notice of the claim (it being understood and agreed, however, that the failure by an Indemnified Party to give notice of a claim as provided in this Section 12.3 shall not relieve the Indemnifying Party of its indemnification obligation under this Agreement except and only to the extent that such Indemnifying Party is actually damaged as a result of such failure to give notice), shall permit the Indemnifying Party to assume direction and control of the defense of the claim (including the right to settle the claim solely for monetary consideration), and shall cooperate as requested (at the expense of the Indemnifying Party) in the defense of the claim. The Indemnified Party shall not agree to any settlement of such action, suit, proceeding or claim without the prior written consent of the Indemnifying Party. The Indemnifying Party shall not agree to any settlement of such action, suit, proceeding or claim or consent to any judgment in respect thereof that does not include a complete and unconditional release of the Indemnified Party from all liability with respect thereto, that imposes any liability or obligation on the Indemnified Party or that acknowledges fault by the Indemnified Party; in each case, without the prior written consent of the Indemnified Party.

12.4 Insurance. Each party, at its own expense, shall maintain product liability and other appropriate insurance (or self- insure) in an amount consistent with industry standards during the Term and shall name the other party as an additional insured with respect to such insurance. Each party shall provide a certificate of insurance (or evidence of self-insurance) evidencing such coverage to the other party upon request.   13. DISPUTE RESOLUTION

13.1 Dispute Resolution. The parties recognize that disputes as to certain matters may arise from time to time during the Term. The parties shall first submit the dispute to the Joint Steering Committee for resolution in accordance with Section 4.3 hereof. In the event that the Joint Steering Committee is unable to resolve the dispute, the parties shall be entitled to seek relief in a court of competent jurisdiction. Notwithstanding the foregoing, to the full extent allowed by law, either party may bring an action in any court of competent jurisdiction for injunctive relief (or any other provisional remedy) to protect the parties' rights or enforce the parties' obligations under this Agreement pending resolution of any claims related thereto by the Joint Steering Committee.   14. GENERAL PROVISIONS

14.1 Governing Law. This Agreement and any disputes, claims, or actions related thereto shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to the conflicts of law provisions thereof.

14.2 Entire Agreement; Modification. This Agreement, including the Exhibits hereto, is both a final expression of the parties' agreement and a complete and exclusive statement with respect to all of its terms. This Agreement supersedes all prior

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and contemporaneous agreements and communications, whether oral, written or otherwise, concerning any and all matters contained herein. This Agreement may only be amended, modified or supplemented in a writing expressly stated for such purpose and signed by the parties to this Agreement.

14.3 Relationship Between the Parties. The parties' relationship, as established by this Agreement, is solely that of independent contractors. This Agreement does not create any partnership, joint venture or similar business relationship between the parties. Neither party is a legal representative of the other party, and neither party can assume or create any obligation, representation, warranty or guarantee, express or implied, on behalf of the other party for any purpose whatsoever.

14.4 Non-Waiver. The failure of a party to insist upon strict performance of any provision of this Agreement or to exercise any right arising out of this Agreement shall neither impair that provision or right nor constitute a waiver of that provision or right, in whole or in part, in that instance or in any other instance. Any waiver by a party of a particular provision or right shall be in writing, shall be as to a particular matter and, if applicable, for a particular period of time and shall be signed by such party.

14.5 Assignment. Except as expressly provided hereunder, neither this Agreement nor any rights or obligations hereunder may be assigned or otherwise transferred by either party without the prior written consent of the other party (which consent shall not be unreasonably withheld); provided, however, that either party may assign this Agreement and its rights and obligations hereunder without the other party's consent in connection with the transfer or sale of all or substantially all of the business of such party to which this Agreement relates to a Third Party, whether by merger, sale of stock, sale of assets or otherwise (a Change of Control Event). The rights and obligations of the parties under this Agreement shall be binding upon and inure to the benefit of the successors and permitted assigns of the parties. Any assignment not in accordance with this Agreement shall be void.

14.6 No Third Party Beneficiaries. This Agreement is neither expressly nor impliedly made for the benefit of any party other than those executing it.

14.7 Severability. If, for any reason, any part of this Agreement is adjudicated invalid, unenforceable or illegal by a court of competent jurisdiction, such adjudication shall not affect or impair, in whole or in part, the validity, enforceability or legality of any remaining portions of this Agreement. All remaining portions shall remain in full force and effect as if the original Agreement had been executed without the invalidated, unenforceable or illegal part.

14.8 Notices. Any notice to be given under this Agreement must be in writing and delivered either in person, by any method of mail (postage prepaid) requiring return receipt, or by overnight courier or facsimile confirmed thereafter by any of the foregoing, to the party to be notified at its address(es) given below, or at any address such party has previously designated by prior written notice to the other. Notice shall be deemed sufficiently given for all purposes upon the earlier of: (a) the date of actual receipt; or (b) if mailed, five calendar days after the date of postmark.

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If to Biocept, notices must be addressed to:

Biocept, Inc. 5810 Nancy Ridge Drive, Suite 150 San Diego, CA 92121 Attention: David Hale Executive Chairman Telephone: (858) 320-8200 Facsimile: (858) 320-8225

If to Life Technologies, notices must be addressed to:

Life Technologies Corp. 5791 Van Allen Way Carlsbad, CA 92008 Attention: David Daly Head of Oncology Telephone: (760) 268-5556

14.9 Force Majeure. Each party shall be excused from liability for the failure or delay in performance of any obligation under this Agreement by reason of any event beyond such party's reasonable control, including but not limited to, Acts of God, fire, flood, explosion, earthquake, or other natural forces, war, civil unrest, any strike or labor disturbance. Such excuse from liability shall be effective only to the extent and duration of the event(s) causing the failure or delay in performance and provided that the party has not caused such event(s) to occur. Notice of a party's failure or delay in performance due to force majeure must be given to the other party within five (5) calendar days after its occurrence. All delivery dates under this Agreement that have been affected by force majeure shall be tolled for the duration of such force majeure. In no event shall any party be required to prevent or settle any labor disturbance or dispute. In the event of a force majeure that persists for thirty (30) days or more, then either party may terminate this Agreement upon written notice to the other party.

14.10 Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original document, and all of which, together with this writing, shall be deemed one and the same instrument.

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IN  WITNESS  WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized representatives as of the date first set forth above.

  BIOCEPT, INC.   LIFE TECHNOLOGIES CORPORATION

By: /s/ Michael J. Dunn   By: /s/ David J. Daly

Name: Michael Dunn   Name: David J. Daly

Title: Senior Vice President, Corp. Dev.   Title: Head of Oncology

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Question: Highlight the parts (if any) of this contract related to Covenant Not To Sue that should be reviewed by a lawyer. Details: Is a party restricted from contesting the validity of the counterparty’s ownership of intellectual property or otherwise bringing a claim against the counterparty for matters unrelated to the contract?
[EX A]: Without limiting the generality of the foregoing, Biocept owns, and Life Technologies acknowledges Biocept's ownership of, (i) the Assay and the Selector technology, and (ii) all Intellectual Property Rights in the Assay and the Selector technology, and Life Technologies agrees that it shall not do or suffer to be done any act or thing or undertake any action anywhere that in any manner might infringe, or impair the validity, scope, or title of Biocept in the Assay, the Selector technology or Intellectual Property Rights owned by Biocept.

[EX Q]: Exhibit 10.8   TALENT ENDORSEMENT AGREEMENT   THIS SUPPLEMENTAL AGREEMENT is made as of this _____ day of ______________ 2013 by and between Tigrent Learning UK Limited of Boston House, 69 — 75 Boston Manor Road, Brentford, Middlesex, TW8 9.1J (Company) and Celebrity Speakers of 90 High Street, Burnham, Buckinghamshire, SL1 7JT (CSA) agent for Robbie Fowler (Talent) in his individual capacity or his duly appointed Representative (collectively the Parties).   WITNESSETH:   WHEREAS,   1. Talent is currently a well-known public figure;   2. Company has entered into an agreement dated 2nd November 2012 with CSA (Primary Agreement) to engage the services of the Talent to endorse the Company's new property training  course Property Academy (Property Training Course) to be  launched in 2013 as specified in clause 5 of the schedule to the Primary Agreement.   3. Company is engaged in developing, creating and providing educational training, products and materials related to real estate, securities and options trading and investment, as well as general wealth building and investing strategies, principles and motivation.   4. It is hereby acknowledged by the Parties that the Company is desirous of acquiring the right  and license to utilize Talent's name and brand, likeness and image to endorse by  way of advertisement, promotion, and sale of a new property training brand (Property Academy) to be launched by the Company and as defined in this Agreement and Talent is willing to grant such right and license as herein below provided.   NOW, THEREFORE, in consideration of the mutual covenants set forth herein and for other good and valuable consideration, it is agreed as follows:   1. DEFINITIONS   The following meanings shall apply to this agreement:   1. Commencement Date means: 1st January 2013.   2. Materials means: Power Point Presentations, Marketing Collaterals, Banners, Workbooks, Flyers or  any other physical item required for the promotion and delivery of the Company's new Property Training Course Property Academy.   3. Product means: The products and materials the Company develops, creates or provides in connection with its educational training, products and materials relating to the Property Training Course.   4. Property means: Talents name, initials, facsimile signature, photograph, video or images, likeness or other such pre-approved copy.



Source: LEGACY EDUCATION ALLIANCE, INC., 8-K, 11/10/2014







  5. Property Training Course means: the property training course developed or to be developed by the Company to be called and marketed under the name/brand Property Academy or any other such name as agreed by the Parties.   6. Territory means: United Kingdom.   7. Term means: 1.5t January 2013 to 315t December 2013 or until terminated under the provisions of this Agreement or the Primary Agreement.   2. GRANT OF RIGHTS   Subject to the terms and conditions and in consideration of the payments set forth herein and in the Primary Agreement, CSA as disclosed agent for Talent grants to Company from the Commencement Date the right and license during the Term of this Agreement in the Territory to use the Property in connection with the advertisement, promotion, and sale of the Property Training Course and the Product as well as the right to use such Property on the Product and related packaging. The above license grant shall apply to all material objects of the Property, in which the Property is fixed by any method now known or later developed, and from which the Property can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. The parties further understand and agree that Company hereby reserves the right to display its copyright notice on advertisements, promotions or other materials as well as all Product, no matter what form or media, containing the Property subject always to all and any copyright or other interests of the Talent.   CSA on behalf of Talent further grants and assigns to Company the right to enforce applicable copyright and intellectual property laws against third party infringers or malfeasors on Talent's behalf or in Talent's name.   2A. ADDITIONAL DUTIES AND PUBLIC APPEARANCES   In accordance with the Primary Agreement, the Talent agrees that during the Term, he will make public appearances at the request of the Company, to include appearing at Company events and/or participating in photo shoots as requested by Company, not to exceed more than four such appearances or photo shoots per calendar year. Any public appearance and/or photo shoot must be approved by the Talent prior to his agreement to attend, which shall not be unreasonably withheld providing the Talent does not have any prior professional or other commitments and reasonable and adequate notice is given and received by CSA on behalf of Talent. The parties agree that Company will pay any necessary and reasonable travel and lodging expenses incurred by Talent in making such requested appearances as per part 1 of the Primary Agreement.   3. TERM   This Agreement shall be effective as of the date of execution by both parties. The period of license granted shall be for the Term and shall extend for a period of twenty four (24) months or until terminated as per clause 8 herein. It is agreed that the Term may be extended upon mutual agreement between the parties.

2

Source: LEGACY EDUCATION ALLIANCE, INC., 8-K, 11/10/2014







4. COMPENSATION   In consideration for the licenses granted hereunder, Company agrees to pay to CSA as follows:   a. A  [***]in the amount of [***]of Company's revenues from sales of the Property Training  Course and all Products after deductions for VAT, returns, refunds   b. Company shall be responsible for the tracking of sales of the Property Training Course and all Products containing the Property and providing to CSA:   i. A monthly list of the sales of Property Training Course and Product (with supporting sales  prices and reconciled reports).   ii. Payment  to CSA no later than thirty (30) days after receipt of invoice from CSA. CSA shall submit  invoice to the Company no later than thirty (30) days after Company provides CSA with the list of the sales of Product (containing the Property with such supporting information that may be required or requested to be disclosed).   c. CSA shall have the right to request an independent audit of the sales of the Product containing the Property which the Company agrees to assist within a reasonable period of time of such request.   5. REVIEW OF MATERIALS   a. Talent  shall have the right of approval in respect of all Product being proposed as any part  of the Property appearing or integrated into it and all proposed use of the Property (including to whom the Property is distributed for sale if other than the general public) prior to public release and distribution.   b. All Materials or any part thereof shall be sent by the Company to CSA for approval by Talent.   c. Talent  shall have seven (7) days following receipt of such Materials or any part thereof displaying  the intended use of the Property to review and for CSA to provide to Company written approval for such use.   d. In the event that Talent objects to the Products or any part thereof and/or any proposed use of the Property, CSA on behalf of Talent shall submit to Company, within seven (7) days following Company's official submission of materials, a written request for revisions. Talent shall not make any request for unreasonable revisions and shall not withhold consent for any proposed use of the Property unreasonably.   e. In the event that Talent does not provide either written approval of materials or a written request for revisions of such materials containing a proposed use of the Property within ten (10) days following Company's submission of such materials to Talent for review, such non-response shall automatically be deemed to be an acceptance and approval of the proposed use of the Property.

3

Source: LEGACY EDUCATION ALLIANCE, INC., 8-K, 11/10/2014







  6. RESERVATION OF RIGHTS   a. Subject to the terms of this Agreement, Talent shall retain all rights in and to his name and in the Property, his right of publicity, and the endorsement and, whether during the Term or any extension thereof, Talent shall not be prevented from using, permitting, or licensing by whatever means ,others to use his name or endorsement in connection with the advertisement, promotion, and sale of any product or service other than the Product or those that are substantially similar to the Product, including but not limited to all real estate, securities and/or options trading and investment educational trainings, products, materials. Company and Talent agree that they shall take all necessary steps  during the Term to protect the endorsement in connection with the advertisement, promotion, and sale of the Product, subject always to the Company bearing any costs or liabilities in taking such steps and fully indemnifying the Talent and his agent in respect thereof.   b. It is understood and agreed that Talent shall retain all copyright and all other rights, title, and interest in the Property, including his likeness, name, and/or trademarks, where applicable, except as licensed hereunder.   c. Subject to the terms of this Agreement and in particular 5 above, it is understood and agreed that Company shall retain all right, title, and interest, including but not limited to  all copyright interest, in and to the Product and any advertising or marketing collateral and/or materials created utilizing the Property under the license granted herein. The Company agrees to defend and fully indemnify the Talent and/or his agents in respect of such rights retained by the Company.   d. The parties agree to execute any documents reasonably requested by the other party to affect any of the above provisions. The Company agrees to defend and fully indemnify the Talent and/or his agents of any costs that may be incurred in complying with this provision.   7. REPRESENTATIONS, WARRANTIES AND INDEMNITY   a. Talent represents and warrants that he has not granted nor will he grant to any other party any right, permission, or license to use the Property in connection with the advertisement,  sale, or promotion of the Product or in connection with products that are identical or substantially similar to the Product.   b. Talent further represents and warrants to Company that he has the full right, power, and authority to grant the Property herein.   c. Talent further represents and warrants that he has not misrepresented or concealed anything with respect to his background that may have a prejudicial effect on the value of the endorsement, that he is in good health, and that he has not engaged nor will he engage during the Term of this Agreement in any activity (criminal or otherwise) that could potentially have a negative impact on the Product.

4

Source: LEGACY EDUCATION ALLIANCE, INC., 8-K, 11/10/2014







  d. Company agrees to defend, indemnify, and hold Talent harmless against all costs, expenses, and losses (including reasonable attorney fees and costs) incurred through claims of third parties against Talent based on the manufacture or sale of the Product including, but not limited to, actions founded on product liability.   e. Talent agrees to defend, indemnify, and hold Company, and its officers, directors, agents, and employees, harmless against all costs, expenses, and losses (including reasonable legal fees and costs) incurred through claims of third parties against Company based on a breach by Talent of any representation and/or warranty made in this Agreement or with respect to any third-party claims for infringement involving the use of the Property by Company.   8. TERMINATION   a. Except as provided in this Section 8, this Agreement shall terminate immediately upon the earlier of (i) the Term of this Agreement or (ii) dissolving of Company and/or Company's complete cessation of doing all business.   b. Either party shall have the right to terminate this Agreement immediately in the event that Talent or the Company does any of the following:   i. Engages in illegal, immoral, or criminal conduct resulting in a felony conviction;   ii. Misrepresents or conceals anything in their background that could be detrimental to the value of the endorsement being made;   iii. Engages in conduct contrary to the best interests of the other party;   iv. Engages in conduct that reasonably offends the sensitivities of a significant portion of the population; or   v. Engages in conduct that could bring the other party into public disrepute.   c. Either party may terminate this provision at any time during the Term, in the event either party is guilty of a material breach of this Agreement, having been given notice of such breach and the breach not being rectified within a reasonable period of time.   9. POST-TERMINATION RIGHTS   a. Talent agrees that Company shall, for a period of nine (9) months (Sell-Off Period) following the effective date of termination, have the right to continue to sell Product bearing  the Property and/or utilize advertising materials and collateral bearing the Property. Such sales and use shall be made subject to all the provisions of this Agreement and in particular clause 4 hereof.   b. Upon  the expiration or termination of this Agreement, all rights granted to Company under  this Agreement shall forthwith terminate and immediately revert to Talent, and Company shall, following the completion of the Sell-Off Period discontinue all use of and reference to the Property.

5

Source: LEGACY EDUCATION ALLIANCE, INC., 8-K, 11/10/2014







  10. RELATIONSHIP OF THE PARTIES   Nothing contained in this Agreement shall be construed as establishing a partnership, or a joint venture relationship between Talent and Company.   11. FORCE MAJEURE   Neither party will be liable for, or will be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any causes or conditions that are beyond such Party's reasonable control and that such Party is unable to overcome through the exercise of commercially reasonable diligence. If any force majeure event occurs, the affected Party will give prompt written notice to the other Party and will use commercially reasonable efforts to minimize the impact of the event.   12. NOTICES   Notice: Each notice, request or demand given or required to be given pursuant to this Agreement shall be in writing and shall deemed sufficiently given if both emailed and deposited in the United Kingdom mail, registered First Class, postage pre-paid, and addressed to the address of the intended recipient set forth below, or to such other address as may be specified in this Agreement or in writing by the parties and receipt shall be deemed if sent by (i) email on the same day if sent on a day open for business and (ii) post on the second day from posting, open for business.   If to Company Name: lain Edwards   Address: Tigrent Learning UK Ltd     Boston House     69 — 75 Boston Manor Road     Brentford     Middlesex     TW8 9.1.1     England   Telephone: 02089 966700   Facsimile: 02089 966701   Email: iainedwards@tiRrent.com       If to CSA Name: Sharon Bowler   Address: Celebrity Speakers Ltd     90 High Street Burnham     Buckinghamshire     SL1 7JT England   Telephone: 01628 601400   Facsimile: 01628 601401   Email: Sharon@speakers.co.uk       If to Talent Name: Robbie Fowler   Address: c/o Celebrity Speakers Ltd — As above

6

Source: LEGACY EDUCATION ALLIANCE, INC., 8-K, 11/10/2014







  13. JURISDICTION/DISPUTES   This Agreement shall be deemed to have been made in England. This Agreement shall be governed by the laws of England and Wales, and all actions brought hereunder whether at law or in equity shall be brought in England. The parties hereby agree that any and all claims arising from or in connection with the subject matter of this Agreement must be brought in England before the County Court or High Court.   14. AGREEMENT BINDING ON SUCCESSORS   The provisions of the Agreement shall be binding upon and shall inure to the benefit of the Parties hereto, their heirs, administrators, successors and assigns.   15. ASSIGNABILITY   The Parties may not assign this Agreement or the rights and obligations hereunder to any third party without the prior express written approval of the other Party.   16. WAIVER   No delay, failure or waiver by either party to exercise any right or remedy under this Agreement, and no partial or single exercise, will operate to limit, preclude, cancel, waive or otherwise affect such right or remedy, nor will any single or partial exercise limit, preclude, impair or waive any further exercise of such right or remedy or the exercise of any other right or remedy.   17. SEVERABILITY   If any term, clause or provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision shall be deemed to be severed from the Agreement.   18. SURVIVAL   The parties' rights and obligations under the Primary Agreement and Articles 4, 6, 7, 9, 10, 12, 13, 14, and 15 shall survive any expiration or earlier termination of this Agreement.

7

Source: LEGACY EDUCATION ALLIANCE, INC., 8-K, 11/10/2014







  19. HEADINGS   All section and subsection headings contained in this Agreement are for convenience only and shall not be deemed to constitute a part of this Agreement nor affect the meaning of same.   20. NO DRAFTER   Both parties warrant and represent that each have had equal input in drafting this Agreement and have had the opportunity to consult with independent legal counsel.   21. EXPENSES   Bar those covered in clause 1A, each party shall bear all expenses incidental to the performance of its obligations under this Agreement.   22. SEPARATE COUNTERPARTS   This Agreement may be executed in several counterparts, each of which shall be an original but all of which together shall constitute one and the same instrument.   23. ENTENT OF AGREEMENT   This Agreement is subject to the terms of the Primary Agreement and both agreements supersede any and all other agreements, either verbal or in writing between the parties hereto with respect to the use of Talent's Property by Company, and contains all of the covenants and agreements between the parties with respect to such use in any manner whatsoever providing that the terms of the Primary Agreement shall remain effective at all times and such terms shall take precedence in the event of any conflict between the terms. Each party to this Agreement acknowledges that no representation, inducements, promises, or agreements, verbally or otherwise, have been made by any party, or anyone acting on behalf of any party, which are not embodied herein, and that no other agreement, statement, or promise not contained in this Agreement shall be valid or binding on either party, other than as expressed in the Primary Agreement and any other written agreement dated concurrent with or after this Agreement shall be valid as between the signing parties thereto provided always such agreement does not override or conflict with the terms of the Primary Agreement.   IN WITNESS WHEREOF, the Parties hereto, intending to be legally bound hereby, have each caused to be affixed hereto its or his/her hand and seal the day indicated.   COMPANY   CSA on behalf of TALENT Tigrent Learning UK Limited           lain Edwards (authorized signatory)   Sharon Bowler (authorized signatory)       Date   Date     8

Source: LEGACY EDUCATION ALLIANCE, INC., 8-K, 11/10/2014 
Question: Highlight the parts (if any) of this contract related to Audit Rights that should be reviewed by a lawyer. Details: Does a party have the right to  audit the books, records, or physical locations of the counterparty to ensure compliance with the contract?
[EX A]:
CSA shall have the right to request an independent audit of the sales of the Product containing the Property which the Company agrees to assist within a reasonable period of time of such request.