TERMS AND CONDITIONS

1. PARTIES AND SCOPE

1.1 These General Terms and Conditions and any applicable Order Acknowledgement Form (an "Order Form" and together with the General Terms and Conditions, the "Agreement") is by and between Medical Marketing Service, Inc. ("MMS", "we," "us," and "our,") and the customer signing the Order Form ("you", "your" and “Client”.) This Agreement shall be effective as of the date on the applicable Order Form.

1.2 MMS provides to its customers certain products and services described herein, including marketing lists and associated marketing broadcast services. MMS shall provide to you the right to use the products and services specified in on the applicable Order Form.

2. PRODUCTS AND SERVICES

2.1 MMS supplies healthcare provider mailing lists (each, a "List") for rental by customers for marketing use. The term "List" includes any list of names, businesses or professional offices, or any portion or derivation thereof, with any accompanying data, however stored, produced, or embodied, including but not limited to mail addresses, e-mail addresses, telephone numbers, facsimile numbers, or any other method by which a message can be transmitted or received. Lists may be owned by MMS or its third-party licensors (each, a "List Owner").

2.2 MMS performs email broadcasts to our targeted healthcare provider databases on behalf of customers. In connection with such broadcast services, MMS may create HTML and/or landing pages on behalf of customers.

2.3 MMS provides access to its Names On-Line Without Waiting (NOWW) Platform, which allows customers to query our database, download data for list rental and submit email broadcast orders to MMS.

2.4 MMS provides access to its NOWW API (Application Programming Interface) Platform, which allows customers to query our database and download data for list rental. The NOWW API is a robust API that handles the automation of actions available through MMS NOWW API such as looking up Physicians and verifying data elements or downloading data for list rental. However, we reserve the right to place limits on the amount of queries and the way our customers use our API to ensure that we provide the highest level of service and performance to our customers.

3. LIMITED LICENSE

3.1 MMS hereby grants to you a limited, non-exclusive, non-transferable right to use the Lists and other products selected on an applicable Order Form in accordance with this Agreement solely for Client's own internal business purposes. You shall not without our written permission: (a) license, resell, rent, lease, distribute, market, copy, make derivatives, commercialize or otherwise transfer rights to or usage of any List or any portion or derivation thereof, to any third party for any purpose; (b) remove or alter any copyright, trademark or proprietary notice included in a List or other product; or (c) transfer, use or export our products or services in violation of any laws or regulations of any government or governmental agency. For clarity you are not permitted to, among other things, migrate data from the Lists into any other database or list append the Lists or utilize the Lists to create any other database or list.

3.2 You shall use Lists, and any data contained therein solely for the purpose or purposes approved by the List Owner in accordance with this Agreement and any agreement required by the List Owner and supplied to you by MMS.

3.3 Unless otherwise specified in an applicable Order Form, each List identified in an Order Form is supplied for one-time use, defined as one mailing, fax, telemarketing contact, or other communication with each name or entity on such List and only for approved direct marketing purposes.

3.4 You shall provide a sample HTML, mailing/fax piece or telemarketing script to us, which may be approved or rejected by the List Owner in its sole discretion. In the event that you desire MMS to perform email broadcasts on your behalf, you shall timely provide to MMS a functional email suppression file.

3.5 You shall use Lists for lawful purposes only. You shall not use Lists for unapproved uses or for any unlawful or prohibited advertising, telemarketing, facsimile, or other transmission. You shall not use Lists in a manner that infringes any third-party trademark, trade name, or copyright.

3.6 You agree that your use of Lists shall be in compliance with all applicable federal and state laws and regulations, including but not limited to the Telephone Consumer Protection Act of 1991, the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (the CAN-SPAM Act), all applicable regulations of the Federal Communications Commission and the California Consumer Privacy Act.

3.7 Except as otherwise provided in an applicable Order Form, you agree to use Lists within ninety (90) days of the date that MMS provides you access to each such List. You agree to make no copies of any List or any portion thereof other than an archival or backup copy, which you agree to destroy upon completion of your approved use.

3.8 Each List contains seed names that are included to ensure compliance with these Terms and Conditions. You are not permitted to delete any seed names within the List. You agree to mail, email, or otherwise send marketing materials to all seed names included on a List.

3.9 In the event of your unauthorized use of a List, you shall reimburse us and the List Owner for any unpaid fees plus any out-of-pocket expenses (including audit fees and reasonable attorneys' fees) incurred in determining list use, and you shall indemnify us and the List Owner from any loss or liability arising out of such unauthorized use. You understand and agree that sending an unauthorized mail, email or other communication to a seed name within the List will be deemed unauthorized use of the entire List.

3.10 In the event that you receive a subject access request, objection, negative reaction, opt out from a recipient of your marketing communications or regular inquiry in connection with your use of a List or any personal information contained therein, you shall comply with the opt out and notify MMS in writing within five (5) business days of receiving such objection or reaction.

3.11 List brokers and advertising agencies may sublicense lists upon prior written consent of MMS on their client’s behalf. List broker or advertising agency represents and warrants that list broker or advertising agency is a duly authorized agent of client with express authority from client to enter into and execute this order acknowledgement on client’s behalf. List broker or advertising agency signature hereto will bind both client and/or list broker or advertising agency and list broker or advertising agency shall be deemed equally liable with client as guarantor of performance of all aspects of this order acknowledgement and any agreement required by the list owner. List broker or advertising agency guarantees payment of all charges within thirty (30) days from the invoice date whether or not list broker or advertising agency receives payment from client.

3.12 You acknowledge and agree that the Services are not configured to process, receive, and/or store: (a) protected health information (“PHI”), as that term is defined under the Health Insurance Portability and Accountability Act (“HIPAA”); (b) "nonpublic personal information" as defined under the Gramm-Leach-Bliley Financial Modernization Act of 1999 (“GLBA”); (c) data concerning any minor under the age of thirteen that would be subject to the Children Online Privacy Protection Act (“COPPA”); (d) card holder data under the Payment Card Industry Data Security Standard. All of the above are collectively referred to as Sensitive PII.

You represent and warrant that you will not transmit, request, provide us with access to, submit, store, or include any Sensitive PII through the Services or permit anyone to do so. You agree that we may terminate this Agreement immediately, without refund, if you are found to be in violation of this clause.

3.13 You agree that, except as expressly approved in writing by us, all access to and/or use of our products and services, including the Lists must occur in the United States. We reserve the right to refuse in our sole discretion any requests to access our products and services and/or Lists from or use Lists outside the United States. We reserve the right to impose additional terms and conditions in order to permit such access or use.

4. PRICING AND PAYMENT

4.1 We reserve the right to change prices without notice. A price quoted in any quotation or in any acknowledgement of your order shall not be deemed a continuing offer to provide products or services at such price. We will provide current price quotations promptly and cheerfully.

4.2 The prices set forth on the Order Form are exclusive of, and you are responsible for, any applicable shipping costs, duties and taxes. If we are obligated to pay any taxes on your behalf, such taxes shall be invoiced to and paid by you within thirty (30) days of the receipt of the invoice.

4.3 Our quotations for services assume that all material provided to us, including HTML, email suppression, customer target data and other content you provide to enable MMS to perform email broadcasts on your behalf, will permit efficient handling. Materials furnished to us that are incomplete, defective, or not up to industry standards may result in excess MMS production time and will be subject to additional charges. We will advise you in advance of any such additional charges.

4.4 In the event that third-party services are required in connection with the performance of services specified in an applicable Order Form, you shall pay the full amount due for such services prior to order processing.

4.5 In the event any amount due is not timely paid, you shall reimburse us for all reasonable costs of collection, including but not limited to reasonable attorneys' fees and court costs. Any overdue amounts shall accrue interest at the lesser of 1.5% per month or the highest rate allowed by law. We reserve the right to suspend access to our products and services and/or any Lists if a payment is overdue.

4.6 We reserve the right to delay execution of any order pending receipt of a signed electronic or facsimile copy of the Order Form and the List Owner's approval.

5. PROPRIETARY RIGHTS/CUSTOMER CONTENT

5.1 You acknowledge and agree that title to Lists and in all related copyrights and other intellectual property rights therein remain with MMS or its licensors. No title to or interest in any List or any portion thereof is transferred to you except for the right to use such List under the license expressly provided herein.

5.2 All rights, title and interest, including all intellectual property rights, in the MMS website and software, including but not limited to the NOWW Platform and NOWW API are and will remain the sole and exclusive property of MMS and its third-party licensors. MMS retains all intellectual property rights in data collected in connection with an email broadcast performed by MMS on your behalf, including information regarding users opening broadcast emails, log file information, device identifiers and metadata.

5.3 You retain all rights, title and interest in documents, data, or data processing materials furnished by you (“Customer Content”). You hereby grant MMS and its service providers a worldwide, non-exclusive, royalty-free, fully paid, sublicensable and transferable license to use, process, store, edit, modify, aggregate, combine, reproduce, distribute, display, publicly perform, publicly display, host, communicate, distribute, and prepare derivative works of the Customer Content in connection with and in accordance with this Agreement and until such time as you request deletion of the Customer Content. Customer represents and warrants that Customer has all rights to grant such license without infringement or violation of any third-party rights, including without limitation, any privacy, publicity, intellectual property, contractual or any other rights under applicable law or contract, and that MMS’ use of Customer Content as permitted under this Agreement will not violate applicable law. Any such property furnished to MMS in connection with our provision of services hereunder, including HTML, email suppression and customer target files, will be maintained by MMS for a period of up to two (2) years following the services or expiration or termination of this Agreement. You are solely liable and responsible for Customer Content.

6. CONFIDENTIALITY

The confidential information ("Confidential Information") of MMS shall include without limitation its Lists, pricing, software code, vendors, employee information, proposals and all correspondence between you and MMS. Your Confidential Information shall include all information provided to MMS that is not publicly available; provided, that Confidential Information shall not include (a) information of discloser that is or becomes in the public domain through no fault of the recipient; (b) information received by recipient from a third party without an obligation of confidentiality; (c) information independently developed by recipient without use of discloser's Confidential Information; (d) information required to be disclosed by law or court order; and (e) HTML, email suppression, sample mailing/fax piece or telemarketing script provided by you for list owner approval or to enable MMS to perform email broadcasts on your behalf. Each party retains all rights, title and interest in its Confidential Information. The recipient shall not, without the discloser's prior written consent, disclose to any third party any Confidential Information of discloser or use the Confidential Information for any purpose not permitted, and each recipient shall protect the Confidential Information of discloser from third parties by using at least a reasonable degree of care. Each party shall be responsible for any breach of this Agreement by its permitted contractors, employees and agents.

7. PASSWORD/SECURITY

The use of some of the services (including the NOWW Platform and NOWW API) may require you to register with MMS. To register you must complete the registration process by providing us with current, complete, and accurate information as prompted by the applicable registration form. You agree to maintain and promptly update your registration information to keep it true, accurate, current and complete. You also certify that you take full responsibility for the selection and use of, and access to, our products and services. If you provide any registration information that is untrue, inaccurate, not current or incomplete, fail to maintain such information, or if MMS has reasonable grounds to suspect that any such information is untrue, inaccurate, not current or incomplete, we may suspend or terminate your account.

Your master administrative Users (the Owner role or Admin role) may appoint additional Users specified in the NOWW Platform and determine what feature permissions to grant to each such User. You shall be responsible for all acts and omissions of users (including any breaches of this Agreement by your administrative or other users), which will be deemed to be your acts and omissions.

In addition, you shall take full responsibility and liability for the security of each of your user names and passwords (including, without limitation, those assigned to any administrative or other users), and you shall be solely responsible for all access and use of the products and services and/or Lists through such user names and/or passwords.

When you register, you or your users will choose a password. You and your users are entirely responsible for maintaining the confidentiality of your username and password and are solely responsible for all activity under your username and password. You or your users may not use anyone else's username or password and you must not permit others to use your username or password. Users access is limited to one user session; concurrent sessions using an identical username and password combination are prohibited. You agree to notify MMS immediately in the event you become aware of any unauthorized use of any username and/or password, any unauthorized use of our products and services and/or a List or any other breach of these Terms and Conditions. MMS will not be liable for any loss that you or any user may incur as a result of the misuse of a password or account, either with or without your or any users’ knowledge.

You warrant that you will maintain reasonable security measures which meet or exceed with the requirements of industry standards and applicable law to protect the security of the products and services and/or Lists and any personal information contained therein or related thereto. These include, but are not limited to implementing appropriate and reasonable legal, organizational, physical, administrative and technical measures and security to protect the Lists from unauthorized access, disclosure, acquisition, and use, including without limitation, by (i) establishing and maintaining a written information security program with respect to the Lists and (ii) establishing and maintaining network and internet security procedures, protocols, security gateways and firewalls, user authentication controls, including multi-factor for remote access, authorization controls, intrusion detection and prevention systems, access and system logging, logs must be retained in accordance with your retention policies, vulnerability management, including routine patching industry standard malware protection software, system integrity monitoring and audit controls. You will immediately (but not later than 48 hours) notify us in writing of any actual or reasonably suspected unauthorized use of any users username, password, Lists or any personal information contained therein.

8. INDEMNIFICATION

8.1 You agree to indemnify, defend and hold MMS and List Owner and their respective employees, directors, officers and agents harmless against any claim, liability, damages, losses, judgment, and other expenses including reasonable attorney's fees and court costs arising out of or resulting from any liability, damages or third party claims made or proceedings brought against MMS or List Owner to the extent such liability arises as a result of (a) your breach of this Agreement; (b) your negligence or willful misconduct; (c) your failure to provide a functional, accurate and complete email suppression file to MMS in connection with an MMS-initiated email broadcast on your behalf; (d) Customer Content; (e) excessive use of or queries to the services (including the NOWW Platform and NOWW API); or (f) any unauthorized use of your username, password, List or any personal information contained therein.

8.2 In the event that MMS or List Owner seeks indemnification hereunder, such party shall promptly notify you in writing of a claim or suit upon which it intends to base a request for indemnification and shall provide reasonable cooperation. No settlement or compromise shall be binding on MMS or List Owner without its prior written consent, not to be unreasonably withheld.

9. WARRANTIES AND WARRANTY DISCLAIMERS

9.1 You warrant that you (a) have full power and authority to enter into the Agreement and perform your obligations herein, (b) will conduct business in a professional manner and in compliance with all applicable laws; (c) will not engage in deceptive, misleading, or unethical practices that may be detrimental to MMS or its products or services; and (d) will make no false or misleading representations with respect to MMS products or services.

9.2 YOU ACKNOWLEDGE THAT WE HAVE NO CONTROL ON WHICH USERS GAIN ACCESS TO OUR PRODUCTS AND SERVICES. NEITHER MMS NOR ITS LICENSORS OR VENDORS MAKE ANY WARRANTIES TO YOU, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. ALL IMPLIED WARRANTIES AS TO SATISFACTORY QUALITY, PERFORMANCE, MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE OR NONINFRINGEMENT ARE EXPRESSLY DISCLAIMED. NEITHER MMS NOR ITS LICENSORS WARRANT THAT THE LISTS OR OTHER PRODUCTS ARE ERROR-FREE OR THAT THEIR USE WILL BE UNINTERRUPTED.

10. LIMITATION OF LIABILITY

THE MAXIMUM LIABILITY OF MMS, ITS AGENTS, DIRECTORS AND OFFICERS AND YOUR EXCLUSIVE REMEDY FOR ANY CLAIM ARISING IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE FEES PAID BY YOU HEREUNDER IN THE THREE MONTHS PRIOR TO THE CLAIM. IN NO EVENT SHALL MMS, ITS AGENTS, DIRECTORS OR OFFICERS BE LIABLE FOR ANY LOST DATA OR CONTENT, LOST PROFITS, BUSINESS INTERRUPTIONS, TELECOMMUNICATIONS AND INTERNET INTERRUPTIONS OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THE PRODUCTS AND SERVICES PROVIDED UNDER THIS AGREEMENT, EVEN IF MMS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. YOU AGREE THAT YOU MUST NOTIFY MMS OF ANY CLAIM YOU MAY HAVE ARISING OUT OF OR RELATED TO THIS AGREEMENT WITHIN THIRTY DAYS AFTER SUCH CLAIM AROSE; OTHERWISE, SUCH CLAIM SHALL BE PERMANENTLY BARRED.

11. TERM & TERMINATION

11.1 This Agreement is effective as of the Effective Date and shall continue for an initial term of twelve (12) months. Except as set forth in an applicable Order Form, the Agreement will automatically renew for successive renewal periods of twelve (12) months unless terminated by either party by providing at least sixty (60) days' written notice prior to the end of the then-current term.

11.2 MMS may immediately terminate this Agreement by providing written notice of such termination to you upon the occurrence of any of the events described below:

11.2.1 You materially breach any of the terms or conditions of this Agreement;

11.2.2 You cease to exist as a business entity or otherwise terminates or significantly limit your business operations;

11.2.3 You are liquidated, dissolved, reorganized, merged, sells substantially all of your assets, enter into receivership or change management, voting control or corporate form;

11.2.4 You make an assignment for the benefit of creditors;

11.2.5 You are insolvent or unable to pay your debts as they mature in the ordinary course of business, or if there are any proceedings instituted by or against you in bankruptcy or under any insolvency laws or for reorganization, receivership or dissolution; or

11.2.6 You fail to secure or renew any license or permit necessary for the conduct of your business, or if any such license is revoked or suspended for any reason.

11.3 Upon any termination of this Agreement: (a) you shall immediately cease use of the Lists and other products and services; (b) upon request from the other party, each party shall return or destroy all copies of the other party's Confidential Information in its possession and/or control within thirty (30) days after the effective date of such termination and certify in writing that such party has complied with its obligations hereunder; (c) any and all payment obligations will immediately become due, regardless of whether longer periods of time were previously agreed upon by the parties; and (d) all licenses granted herein shall terminate.

11.4 The provisions of Sections 4, 5, 7, 8, 9, 11.3, 11.4, 11.5, and 12 shall survive any termination or expiration of this Agreement. The provisions of Section 6 shall survive for three (3) years after any termination or expiration of this agreement.

11.5 EXCEPT FOR YOUR UNAUTHORIZED USE OF THE LISTS, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR DAMAGES OF ANY KIND, INCLUDING SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ON ACCOUNT OF THE TERMINATION OR EXPIRATION OF THIS AGREEMENT IN ACCORDANCE WITH ITS TERMS. YOU WAIVE ANY RIGHT YOU MAY HAVE TO RECEIVE ANY COMPENSATION OR REPARATIONS ON TERMINATION OR EXPIRATION OF THIS AGREEMENT. NEITHER PARTY WILL BE LIABLE TO THE OTHER ON ACCOUNT OF TERMINATION OR EXPIRATION OF THIS AGREEMENT FOR REIMBURSEMENT OR DAMAGES FOR THE LOSS OF GOODWILL, PROSPECTIVE PROFITS OR ANTICIPATED INCOME, OR ON ACCOUNT OF ANY EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS MADE BY EITHER PARTY OR FOR ANY OTHER REASON WHATSOEVER BASED UPON OR GROWING OUT OF SUCH TERMINATION OR EXPIRATION.

12. MISCELLANEOUS

12.1 MMS provides all services from within the United States. This Agreement shall be governed by, and construed in accordance with the laws of the State of Illinois, excluding its conflict of laws provisions. Each party irrevocably accepts the exclusive jurisdiction of the state and federal courts located in Cook County, Illinois over any claim or dispute hereunder.

12.2 This Agreement constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior and/or simultaneous representations, discussions, negotiations and agreements, whether written or oral. Except as expressly set forth hereunder, amendments or revisions to this Agreement must be in writing, signed by both parties' duly authorized representatives or agreed to by you as set forth below. In the event of any conflict with the terms of your Purchase Order, the MMS Order Form (and Terms and Conditions) will prevail.

12.3 Except with regard to payments due MMS, neither party shall be liable for any delays or failures in performance due to circumstances beyond its control which could not be avoided by the exercise of due care.

12.4 Your ink, facsimile or digital signature on an applicable Order Form, or any other method of demonstrating your assent such as clicking "I Agree" in an appropriate box on the MMS website, NOWW Platform and/or NOWW API indicates that you have read and agree to be bound by the terms of this Agreement and any other applicable agreements incorporated herein or amendments to same which you understand may occur without notice. We recommend that you make sure to review these terms and conditions for updates. Once an authorized agent from your organization signs this Agreement, it will apply to any subsequent orders placed by any person in your organization until the termination or expiration of this Agreement.

13. AMA DATA ADDITIONAL LICENSE TERMS AND CONDITIONS (Applicable only to AMA Data)

13.1 AMA Data. Any physician names, mailing or office addresses, phone numbers, fax numbers, specialties and No Contact flags in the MMS List and NOWW Platform, whether identified to a physician or medical student by name or other identifier, shall be treated by MMS and Client as being derived from the American Medical Association’s Physician Professional Data proprietary database (such variables referred to hereafter as “AMA Data”). The continuing receipt and use of any AMA Data is contingent upon Client’s executing and complying with the Agreement. AMA Data, the structure, sequence, and organization thereof, all listings, and the information contained thereon/therein, and any copyrights, patents, trade secrets, trademarks and other intellectual property rights embodied therein or derived therefrom are and will remain the sole and exclusive property of the AMA. Client shall not contest AMA’s rights in the AMA Data and shall not do (or omit to do) or authorize any third party to do (or omit to do), anything inconsistent with such rights. Client shall promptly notify MMS of any infringement, misappropriation, or violation of AMA’s rights of which Client becomes aware.

13.2 Confidentiality of AMA Data. Notwithstanding anything contained elsewhere in the Agreement, AMA Data will be deemed to be the Confidential Information of MMS. Client shall, without exception, treat the AMA Data as confidential, using the same degree of care to protect the AMA Data that Client uses to protect its own confidential information, but in any event not less than a reasonable degree of care. Except as required by applicable federal, state, or local law or regulation, the term Confidential Information as used in this Order Form and the Agreement shall not include information that: (i) at the time of disclosure is or becomes, generally available to and known by the public other than as a result of any material breach of this Order Form and the Agreement by the Receiving Party; (ii) at the time of disclosure is, or thereafter becomes, available to the Receiving Party on a non-confidential basis from a third-party source, provided that, to the Receiving Party’s knowledge, such third party is not and was not prohibited from disclosing such Confidential Information to the Receiving Party by any contractual obligation; (iii) was known by or in the possession of the Receiving Party prior to being disclosed by or on behalf of the Disclosing Party pursuant to this Agreement; (iv) was or is independently developed by the Receiving Party without reference to or use of any of the Disclosing Party’s Confidential Information, or (v) information that is approved for disclosure by written consent of the Disclosing Party.

13.3 Data Security.

13.3.1 Client shall use appropriate and reasonable legal, organizational, physical, administrative and technical measures and security to protect the AMA Data from unauthorized access, disclosure, acquisition, and use, including without limitation, by (i) establishing and maintaining a written information security program with respect to AMA Data and (ii) establishing and maintaining network and internet security procedures, protocols, security gateways and firewalls, user authentication controls, including multi-factor for remote access, authorization controls, intrusion detection and prevention systems, access and system logging, logs must be retained in accordance with Client’s retention policies, vulnerability management, including routine patching industry standard malware protection software, system integrity monitoring and audit controls.

13.3.2 Client shall, at its sole expense: (i) promptly notify MMS and AMA of any unauthorized access, disclosure, acquisition, or use of AMA Data that it believes or is aware has occurred (a “Security Breach”). Client shall promptly investigate the Security Breach and (a) provide frequent updates with respect to Client’s investigation of the Security Breach, (b) promptly provide to MMS and AMA a written report that sets forth Client’s root cause analysis and corrective action plan, (c) implement the corrective action plan and mitigate and remediate the effects of the Security Breach as soon as practicable and (d) provide MMS and AMA with frequent updates with respect to Client’s mitigation and remediation efforts. Client shall reimburse MMS and AMA on demand for all reasonable costs associated with addressing and responding to any Security Breach arising from Client’s failure to comply with this Section (13.3) including, without limitation, the costs incurred by MMS and AMA for (aa) preparation and mailing or other transmission of notifications regarding the Security Breach and (bb) preparation and mailing or other transmission of other communications regarding the Security Breach as MMS and AMA deems reasonably appropriate.

13.3.3 Client acknowledges that its violation of this Section (13.3) would cause irreparable harm to MMS and AMA, the amount of which would be impossible to estimate, thus making any remedy at law or in damages inadequate. Client therefore agrees that MMS and AMA may apply to any court of competent jurisdiction for, and be granted, an injunction compelling specific performance by Client of its obligations under this Section 13.3 without the necessity of posting any bond. This right will be in addition to any other remedy available under this Order Form or the MMS Agreement General Terms and Conditions.

13.4 Limitation of Liability.

(a) Consequential Damages. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL AMA BE LIABLE TO CLIENT OR ANY OTHER PERSON OR ENTITY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE, FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, DAMAGES FOR ANY LOSS OF BUSINESS, LOSS OR USE OF DATA OR INFORMATION, INTERRUPTION OF BUSINESS OR AVAILABILITY OF THE AMA DATA, GOODWILL, OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF, CONNECTED WITH, RELATING TO, OR RESULTING FROM (I) CLIENT’S USE OR INABILITY TO USE THE AMA DATA; (B) THE USE OF, REFERENCE TO, OR RELIANCE ON THE AMA DATA BY CLIENT; (C) ANY CONTENT, MATERIALS, ACCURACY OF INFORMATION, AND/OR QUALITY OF THE AMA DATA; OR (D) ANY OTHER SUBJECT MATTER OF THIS ORDER FORM OR LICENSE GRANTED UNDER THE AGREEMENT. SUCH LIMITATIONS ON DAMAGES WILL APPLY REGARDLESS OF WHETHER OR NOT MMS WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS EXCLUSION INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST CLIENT. CLIENT SHALL NOT APPLY FOR, SEEK OR OTHERWISE REQUEST FROM ANY COURT, RELIEF OR REMEDY IN THE FORM OF EXEMPLARY OR PUNITIVE DAMAGES. 

(b) Direct Damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AMA’S AGGREGATE LIABILITY FOR ANY LOSSES OR DAMAGES ARISING OUT OF, CONNECTED WITH, RELATING TO, OR RESULTING FROM THE SUBJECT MATTER OF THIS AGREEMENT, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CLIENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

13.5 Indemnification.

Client (“Indemnifying Party”) shall indemnify and defend the AMA and its trustees, managers, officers, directors, employees, agents, assignees and successors in interest (the “Indemnified Party”) from claims, liabilities, proceedings, actions, and settlements brought by third parties (“Claim”) or “Claims”) and pay all related damages, costs, losses, fines, penalties, and expenses, including, without limitation, reasonable attorneys’ and expert witness’ fees, paid, incurred or suffered by the Indemnified Party in connection with, arising directly or indirectly out of, resulting from, or incident to Indemnifying Party’s (i) breach of any representation, warranty covenant, or other obligation under the Special Terms found in this Order Form; or (ii) violation of any applicable law, rule, or regulation in the use of the AMA Data.

13.6 Third Party Beneficiary.

The AMA is an express third-party beneficiary of the Agreement and shall be entitled to enforce the Agreement directly against Client with respect to Client’s obligations as they relate to the AMA Data.

13.7 Approved Use of the AMA Physician Professional Data (“AMA Data”).

Client’ use of AMA Data must comply with the terms of the Policies Governing the Approved Use of the AMA Physician Professional Data (“AMA Data”) and incorporated herein by reference (available at https://www.ama-assn.org/sites/ama-assn.org/files/corp/media-browser/public/dbl-public/exhibit-d-policies-governing-approved-use-ama-ppd.pdf).

13.8 Physician Recruiting.

Client shall not use AMA Data (1) to contact Resident Physicians by telephone at their workplace for Physician Recruitment purposes and/or (2) in conjunction with secondary data sources to contact resident physicians by telephone at their workplace for Physician Recruitment purposes. For purposes of this Order Form, "Physician Recruitment" shall refer to the solicitation of Resident Physicians for employment. “Resident Physicians” shall mean any individual at any level in a graduate medical education program, including subspecialty programs.

13.9 No Contact “Designations.”

The “no contact” designation in the AMA Data means that the AMA Data related to the respective physician may not be used to contact the physician, except to provide health warnings or drug recalls, which should be sent to all physicians.