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Program Participation Terms and Conditions

These Terms and Conditions, together with the services and deliverables to be performed are issued pursuant to execution of one or more Program Participation Agreements (“PPA”), insertion order(s), or any other document(s) (collectively the “Agreement”) executed between you (the “Company”) and PatientPoint Network Solutions, LLC (“PatientPoint”, individually as “Party” and collectively as the “Parties”).

  1. PURPOSE. The Agreement contains the general terms and conditions under which the Company engages PatientPoint and under which PatientPoint provides certain services and creates certain deliverables (the “Deliverables” or “Services”), for Company.
  2. PROGRAM MATERIALS. Company warrants that all advertisements or other content provided to PatientPoint for distribution to Participating Providers (“Company Content”) shall be approved for distribution according to its own medical, regulatory, and legal processes and is not in violation of the Federal Food and Drug Cosmetic Act, Prescription Drug Marketing Act, Federal Trade Commission Act or other state or federal law governing advertising, labeling, or other aspects of prescription and over the counter drug promotion (including implementing regulations or guidance for the aforementioned). In the event Company Content requires amendment, removal, or destruction because of errors, omissions, or corrections required by Company or a federal or state regulatory body, PatientPoint shall initiate its then current Standard Operating Procedure for Program Updates.
  3. TERM AND TERMINATION. The Agreement may be terminated in the event that the other party (a) becomes the subject of a voluntary petition in bankruptcy or any voluntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors; or (b) becomes the subject of an involuntary petition in bankruptcy or any involuntary proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is acquiesced to or not dismissed within sixty (60) days of filing. Except as otherwise provided herein, upon termination of the Agreement, Company will remain responsible for any and all fees for Services rendered prior to such termination.
  4. RELATIONSHIP. Both parties understand and agree that no partnership, joint venture, or agency relationship is created hereby. Each party shall be conclusively deemed to be an independent contractor and not under the control or supervision of the other.
  5. NO COMPENSATION. PatientPoint and Company agree (a) any payments provided under the Agreement or any PPA are consistent with arm’s length transactions for services of the kind provided hereunder, (b) such payments are not in exchange for any agreement by PatientPoint or Participating Providers, whether express or implied, to prescribe, cause to be prescribed, use, or recommend the prescription or use of any product of Company, and (c) such payments are not determined in a manner that takes into account the volume or value of any referrals or business otherwise generated between the Parties for which payment may be made in whole or in part under Medicare, Medicaid, or other federal health care programs, as defined in 42 USC section 1320a-7b(f).
  6. OWNERSHIP. Company shall have no control over the educational content presented in connection with PatientPoint’s delivery of Services (“Educational Content”) except for its exclusive control of Company Content. Company shall make no attempt to alter, modify, or influence the Educational Content. The Company retains all ownership rights in all Company advertising used in connection with any PatientPoint program in which it participates, as well as all of its trademarks and copyrighted materials. PatientPoint retains all ownership rights in all PatientPoint Educational Content trademarks, copyrighted materials, and health care provider databases and may not reproduce copy or use any of PatientPoint’s Educational Content, trademarks, copyrighted materials, or health care provider databases without PatientPoint’s prior consent.
  7. CREATIVE DUE DATES. Company will adhere to the due dates provided by PatientPoint for creative materials. If PatientPoint provided due dates are missed, any delay in receipt of copy will result in a delay of materials in market and Company may incur incremental charges. PatientPoint shall not have any liability to Company with respect to any PatientPoint program going to market late due to missed materials due dates and PatientPoint will be under no obligation to provide any program extension, monetary credits, or be in any way responsible for the delay or subsequent success of the applicable PatientPoint program.
  8. PROOF OF PERFORMANCE. Any proof of performance, if specifically requested by the Company or any agent of the Company, will be provided in a form and manner decided by PatientPoint in its sole discretion.
  9. DELIVERY. Health care providers may leave the various PatientPoint programs due to circumstances including but not limited to retirement, office consolidation, death, hiring of new health care providers, and mergers and acquisitions (“Delivery”). If the Participating Provider counts delivered by PatientPoint fall below the deliverable called for in the applicable PPA, PatientPoint will perform the following to provide Brand with adequate value for program participation. These include, but are not limited to: (a) re-matching and adding in new health care providers in the event PatientPoint is in possession of an approved health care provider list; (b) adding in locations where health care providers prescribe the Brand being promoted in the event that PatientPoint does not have an approved health care provider list; (c) adding in locations where health care providers participate in the category being promoted in the event that PatientPoint does not have an approved health care provider list and brand prescribing is not readily available (e.g. new launch, vaccines, IV medications); or d) increasing Company’s content frequency of play in existing Participating Providers.
  10. CONFIDENTIALITY. It is understood that during the course of the Agreement, each of the parties, and their respective employees and representatives, may disclose and provide to the other party, its employees and representatives, certain information (such as technical, economic, competitive, marketing, business, member identifiable information, provider lists, and documents) which is proprietary and confidential information. Except as otherwise provided herein, each party shall treat any confidential, secret, or proprietary information that has been disclosed by such party (the “Disclosing Party”) to the other party (a “Receiving Party”), or that has been learned by the Receiving Party as a result of the Agreement, and which is not generally known to the public (collectively, the “Confidential Information”), as confidential and exercise at least the same degree of care to safeguard the confidentiality of the Confidential Information as the Receiving Party would exercise to safeguard the Receiving Party’s own Confidential Information but not less than a reasonable degree of care. The Receiving Party shall use the Confidential Information only as provided in the Agreement and shall not disclose, transfer, publish, or otherwise make the Confidential Information available by any means to any individual, firm, or entity other than employees of the Receiving Party who have a need to know and have been directed to treat the Confidential Information as confidential in accordance with the Agreement or except as otherwise provided herein. The Receiving Party shall immediately notify the Disclosing Party if any Confidential Information has been lost, stolen or inadvertently disclosed. The restrictions contained in this Agreement (a) will not apply to any information which (i) was known to a Receiving Party prior to the disclosure thereof, (ii) was in the public domain prior to the disclosure thereof; (iii) comes into the public domain through no fault of the Receiving Party; or (iv) is disclosed without restriction by a third party who has a legal right to make such disclosure. In the event either party breaches any of its obligations under this section, the non-breaching party, in addition to any other rights or remedies available, will be entitled to seek injunctive relief against the breaching party.
  11. INDEMNITY. The Company shall indemnify and hold harmless PatientPoint, its affiliated companies, and any of their respective shareholders, members, directors, officers, employees and agents from any and all losses, claims, damages, settlements, judgments, bodily injury (including death), and other expenses, including reasonable attorney’s fees, arising from or related to (i) the advertisement, promotion, and endorsement of, use of, or any alleged defect in any Company product promoted by PatientPoint, or (ii) the Company’s performance or failure to perform under the Agreement.
  12. LIMITATION OF LIABILITY. In no event will PatientPoint’s liability in connection with the Program, whether caused by failure to deliver, nonperformance, defects, or otherwise, exceed the aggregate amounts paid by Company to PatientPoint hereunder during the three (3) month period immediately preceding the event giving rise to such liability, other than as otherwise provided for in the Agreement. In no event shall PatientPoint be liable in any way to provider for any lost profits or revenues, loss of use, regulatory fines (and associated costs), loss of data or costs of procurement of substitute goods, licenses or services, or for any punitive, indirect, special, incidental, consequential, or similar damages of any nature, whether foreseeable or not, arising out of, or in connection with, the performance or nonperformance of the Agreement. The limitations contained in the Agreement apply to all causes of action in the aggregate, whether based in contract, tort (including negligence), or any other legal theory (including strict liability).
  13. ASSIGNMENT. Neither party hereto may assign, delegate, or transfer any of its rights or obligations under the Agreement without the written consent of the other party. Moreover, such consent may not be unreasonably withheld provided that, without such consent either party may assign the Agreement in connection with the transfer or sale of all or substantially all of its assets or business to which the Agreement relates or its merger or consolidation with another company. Notwithstanding the foregoing, the Agreement may be assigned by PatientPoint to any lender in connection with any financing provided by such lender to PatientPoint or any of its affiliates.
  14. LICENSES, PERMITS AND APPROVALS. Company will assure that all necessary licenses, permits, and approvals (including regulatory approvals) have been obtained to allow PatientPoint to use Company Content as planned in the Agreement.
  15. FORCE MAJEURE. Neither party will be deemed to be in default under the Agreement because of the failure to perform any obligation hereunder if such failure is caused by fire, embargo, strike, war, acts of God, or other cause beyond such party’s reasonable control (whether or not similar to the foregoing).
  16. GOVERNING LAW & JURISDICTION. The Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Ohio without regard to its conflicts of law rules. The parties consent to the jurisdiction and venue of the state and federal courts located in Hamilton County, Ohio for any dispute arising out of the Agreement.
  17. ENTIRE AGREEMENT/AMENDMENTS. The Agreement and its related exhibits shall constitute the entire understanding between the parties hereto, with respect to the subject matter hereof, and supersedes all negotiations, representations, prior discussions and preliminary agreements between the parties hereto, relating to the subject matter hereof and thereof. Neither the Agreement nor any PPA, attachment, exhibit and/or addendum may be changed or modified unless such change or modification is in writing and executed by both parties. In the event that a conflict arises between a the Agreement or other agreements between the Company, its agents, and PatientPoint, the Agreement will prevail, including when the Agreement is silent to the disputed subject matter.
  18. SEVERABILITY. No provision of the Agreement which may be deemed invalid or unenforceable against the parties will in any way invalidate or make unenforceable any other provision of the Agreement, all of which will remain in full force and effect.