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Terms and Conditions Governing Insertion Order (“Terms”)

EXHIBIT A

    1. Advertiser is solely responsible for its advertising and other promotional content that is provided by or on behalf of Advertiser for use in connection with My Medica Affairs (MyMA) performance of the Services (“Content”).  As used herein, the term “Services” refers to the services provided by MyMA under the Insertion Order.
    2. The Services and all technology, data and materials that MyMA uses, develops or collects in connection with the performance of the Services (excluding the Content) are solely owned by MyMA, and no title in or rights to any such property are transferred to Advertiser. Advertiser shall not collect or have any rights with respect to QxMD user data except that Advertiser may use the aggregate performance reports provided by MyMA internally to evaluate the Services. Advertiser owns all Content and grants MyMA a license to use, host, publish and promote the Content to perform the Services.
    3. MyMA makes no representations or warranties of any kind, express or implied, with respect to the Services and expressly disclaims all warranties. Except with respect to Advertiser’s indemnification obligations herein, neither party shall be liable for any indirect or consequential damages, and MyMA’s liability in relation to the Services is limited to direct damages not to exceed the amount paid by Advertiser under the Insertion Order.
    4. The Services may not be terminated by either party other than due to the other party’s material breach of these Terms which remains uncured for a period of thirty (30) days following such other party’s receipt of a notice thereof.  Any provisions of the Insertion Order which must survive in order to give effect to their meanings shall survive the termination or expiration of the Insertion Order.
    5. Notwithstanding anything to the contrary contained in these Terms, MyMA reserves the right to suspend or remove any Content or modify its Services if such suspension, removal or modification is reasonably necessary, in MyMA’s sole discretion, to maintain compliance with applicable laws, rules or regulations or its then-current policies posted on its website located at qxmd.com (the “Policies”). If MyMA is unable to perform its obligations under the Insertion Order due to circumstances beyond its reasonable control, such obligations will be suspended so long as those circumstances persist.
    6. In consideration for the Services, Advertiser shall pay the fees specified in the Insertion Order, which are exclusive of sales and similar taxes relating to the Services that may be imposed on Advertiser or MyMA, which shall be the responsibility of Advertiser (excluding taxes on MyMA’s income).
    7. The Insertion Order (including these Terms) constitutes the entire agreement between the parties with respect to the Services, and any prior representations and agreements relating thereto shall be of no effect. Any amendments to the Insertion Order (including these Terms) must be made in writing and signed by both parties provided that MyMA may modify its Policies from time to time.
    8. Advertiser represents and warrants that (i) the Content complies with all applicable laws and regulations (and include, for avoidance of doubt, all legally required legends, disclosures and statements), the Insertion Order, including, without limitation the terms and conditions of the Policies and do not violate the rights of any third party; (ii) Advertiser holds the necessary rights to permit the use and display of the Content as set forth herein; and (iii) Advertiser retains the sole and final authority to review and approve all Services under the Insertion Order, and shall be solely responsible for ensuring that such Services comply with all applicable federal, state, and local laws and regulations, including but not limited to those governing the distribution of physician gifts and honoraria and the marketing and promotion of prescription drugs.
    9. Advertiser shall indemnify, defend and hold harmless MyMA and its affiliates from and against any and all claims, damages and expenses (including attorneys’ fees) arising from or related to (i) the Content, including but not limited to (a) any claim that the Content violates a third party’s intellectual property rights or any laws or regulations applicable to the advertising of pharmaceutical products and (b) any product liability or other claim by a third party relating to any Advertiser product that is the subject of the Services, or (ii) Advertiser’s acts, omissions or breach of its obligations or representations contained herein.
    10. Advertiser will not at any time use the Confidential Information (as defined below) for any purpose whatsoever or disclose the Confidential Information to any third party, and it is understood and agreed that the Confidential Information shall remain the sole property of MyMA. The terms of the Insertion Order are confidential and neither Party will make any public statement, press release, or other announcement relating to the terms and conditions hereof without the prior written consent of the other party, unless required by law. As used herein, “Confidential Information” means any MyMA or third-party proprietary information, technical data, trade secrets or know-how disclosed by MyMA in writing, orally or otherwise. “Confidential Information” does not include information which (a) was known to Advertiser on a non-confidential basis at the time of disclosure to Advertiser by MyMA as evidenced by written records of Advertiser; (b) has become publicly known and made generally available through no wrongful act of Advertiser; (c) has been rightfully received by Advertiser on a non-confidential basis from a third party who is authorized to make such disclosure; or (d) is independently developed by Advertiser without reference to the Confidential Information.
    11. Any notice by a party hereunder shall be in writing and either personally delivered, delivered by facsimile or sent via reputable overnight courier addressed to the other party at the address specified above or such other address of which either party may notify the other.  The Insertion Order shall be interpreted, governed and construed by the laws of the State of New South Wales Australia, without regard to the actual state or country of incorporation or residence of Advertiser, and the parties unconditionally consent to the exclusive jurisdiction of the courts of the State of New South Wales Australia for any action, suit or proceeding (other than appeals therefrom) arising out of or related to the Insertion Order.

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