These Program Participation Terms and Conditions (“Terms”) form part of this Agreement (as defined below) by and between iDoc Holdings, Inc., d/b/a CheckedUp (“CheckedUp”) and the individual or legal entity (“Customer”) who has executed an insertion order (or other ordering or purchasing document) with CheckedUp referencing these Terms (“Insertion Order”). The Agreement governs all Services (as defined below) by CheckedUp and Customer, as specified in the applicable Insertion Order. Each of CheckedUp and Customer is a “Party” and, together, the “Parties.”

By executing an Insertion Order, Customer expressly accepts and agrees to the terms of this Agreement. If you are an individual agreeing to the terms of this Agreement on behalf of an entity, such as your employer, you represent that you have the legal authority to bind that entity, and “Customer” shall refer in this Agreement to such entity.

1. DEFINED TERMS

   • “Advertisement” means “Customer-Provided Advertisement” or “Developed Advertisement,” as applicable.
   • “Agreement” means these Terms and the applicable Insertion Order.
   • “Customer-Provided Advertisement” means an advertisement that Customer develops or has developed and provides to CheckedUp in finished form for display on the Equipment.
   • “Developed Advertisement” means an advertisement that CheckedUp jointly develops with Customer for display on the Equipment.
   • “Equipment” means CheckedUp’s TV Monitor Assemblies and Wallboard Assemblies loaned to certain Participating Providers for display in certain of their waiting rooms and/or exam rooms.
   • “Services” means the display of the applicable Advertisement on the Equipment and, solely with respect to Developed Advertisement (if applicable), CheckedUp’s development of such Developed Advertisement based on Customer Materials and assistance.

2. STRUCTURE

   • Purpose.This Agreement contains the general terms and conditions under which the Customer engages CheckedUp and under which CheckedUp provides certain Services for Customer. No Insertion Order shall be binding upon CheckedUp until executed by CheckedUp.
   • Insertion Order. Each Insertion Order shall contain, at a minimum: (a) number of Equipment units on which an Advertisement shall be displayed (“Display Count”); (b) start and end date for display of such Advertisement; (c) payment amount for the Services; and (d) whether such Advertisement is a Customer-Provided Advertisement or a Developed Advertisement. With respect to any Developed Advertisement, the applicable Insertion Order shall further specify: (i) timelines; (ii) detailed description of or specifications for such Developed Advertisement; (iii) materials and other content to be provided by Customer for the generation of such Developed Advertisement (“Customer Materials”); and (iv) acceptance criteria for such Developed Advertisement.
   • Order of Precedence. CheckedUp will not be bound by any terms that are additional to or inconsistent with this Agreement. Any conflict between an Insertion Order and these Terms shall be resolved in favor of the Terms.

3. SERVICES

   • Services. CheckedUp shall use commercially reasonable efforts to perform the Services, in accordance with this Agreement and applicable laws. CheckedUp may freely subcontract any portion of the Services, provided that CheckedUp remains responsible for its subcontractor’s performance of such Services.
   • Display on Equipment. CheckedUp has entered into a number of agreements with healthcare entities and individuals (collectively, “Participating Providers”) pursuant to which CheckedUp shall loan to such Participating Providers certain units of Equipment on which CheckedUp may display advertisements.
   • Customer-Provided Advertisement. This Section 3 applies to this Agreement only where the Insertion Order indicates that Customer is providing a Customer-Provided Advertisement to CheckedUp.
     • Customer Obligations. Customer shall promptly deliver the Customer-Provided Advertisement to CheckedUp. Customer shall: (a) not provide any content that contains inaccurate information (including inaccurate medical information), false or misleading claims, or any other content that results or may result in a material detriment to CheckedUp’s business; and (b) be responsible for ensuring that the Customer-Provided Advertisement is in compliance with all applicable laws and regulations (including, without limitation, all regulatory and privacy laws). Customer shall promptly provide written notice to CheckedUp of any issues relating to (b), and CheckedUp and Customer shall discuss and mutually agree in good faith upon modifications to the Services as necessary to address such matters to the Parties’ mutual satisfaction.
   • Advertisement Development. This Section 4 applies to this Agreement only where the Insertion Order indicates that the Parties are creating a Developed Advertisement.
     • Customer Obligations. Customer shall promptly deliver to CheckedUp all Customer Materials in accordance with the applicable Insertion Order and provide all reasonable assistance and consultation with CheckedUp in generating the Developed Advertisement. Without limiting the generality of the foregoing, Customer shall: (a) make its personnel, vendors, and other partners available to facilitate CheckedUp’s performance of the Services; (b) not provide any Customer Materials or other content that contains inaccurate information (including inaccurate medical information), false or misleading claims, or any Customer Materials or content that result or may result in a material detriment to CheckedUp’s business; and (c) be responsible for ensuring that the Customer Materials and Developed Advertisement are in compliance with all applicable laws and regulations (including, without limitation, all regulatory and privacy laws). Customer shall promptly provide written notice to CheckedUp of any issues relating to (b), and CheckedUp and Customer shall discuss and mutually agree in good faith upon modifications to the Services as necessary to address such matters to the Parties’ mutual satisfaction.
     • Acceptance. Customer may receive up to two (2) proofs (each, a “Proof”) for revisions of each Developed Advertisement. Customer shall pay an additional $100 per each additional proof for such Developed Advertisement requested by Customer. CheckedUp shall provide Customer with each Proof for approval. If Customer does not affirmatively accept or reject such Proof in writing within five (5) business days of receipt of such Proof, such Proof shall be deemed accepted and CheckedUp’s Services with respect to such Proof shall be deemed satisfactorily completed; provided, however, that CheckedUp shall not be obligated to display any such Developed Advertisement on the Equipment unless and until Customer has affirmatively accepted such Developed Advertisement in writing.
   • Delays. Customer understands and agrees that if Customer is late in providing the Customer-Provided Advertisement or Customer Materials in accordance with CheckedUp-provided due dates for the foregoing, or if Customer delays in or does not otherwise reasonably cooperate with CheckedUp in generating the Developed Advertisement (each, a “Customer Delay”), this may delay or otherwise hinder CheckedUp’s performance of the Services, which shall not be deemed a breach by CheckedUp under this Agreement, and CheckedUp may require Customer to pay incremental charges relating to such Customer Delay. CheckedUp shall not have any liability to Customer with respect to any delayed or hindered performance of the Services (including, without limitation, the delay or reduced display time of the applicable Advertisement on Equipment), and CheckedUp will be under no obligation to provide any term extension, monetary credits, increase in Display Count, or any other modification to this Agreement for reasons relating to any Customer Delay or any subsequent success relating to such Advertisement.
   • Proof of Performance. Any proof of performance of the Services, if specifically and reasonably requested by Customer in writing, will be provided in a form and manner decided by CheckedUp in its sole discretion. Such proof of performance shall be treated as CheckedUp’s Confidential Information.
   • Delivery. The number and identity of Participating Providers, or individual physicians or other healthcare providers under such Participating Providers, may change due to circumstances including, but not limited to, retirement, office consolidation, death, hiring new health care providers, and change of control (“Delivery”). If the Participating Providers change so that the Display Count is below the total agreed upon in the applicable Insertion Order, CheckedUp shall, at its election, provide any of the following to provide Customer with adequate value (as reasonably determined by CheckedUp) for the Services: (a) displaying the Advertisement on Equipment at other additional Participating Providers; or (b) increasing the frequency or duration of display of such Advertisement on any Equipment at Participating Providers.
   • Advertisement Approval. In its sole discretion, any Participating Provider, or individual physicians or other healthcare providers under such Participating Provider, may reject Advertisement’s inclusion for display on the Equipment placed at such Participating Provider (or at such individual physician or other healthcare provider under such Participating Provider). Any such exclusions of Advertisements will not count towards the Display Count for such Advertisements. Notwithstanding anything to the contrary, CheckedUp reserves the right to reject any Advertisement, or part of any Advertisement, that it in its reasonable discretion deems objectionable in nature or content, or in its reasonable discretion believes would be objectionable or offensive to its other Advertisers.
   • Target Lists: Client must provide final campaign target list no later than 60 days before the contracted beginning of a campaign. If client’s target list changes during the course of the campaign, CheckedUp will work with client in an attempt to accommodate changes to client’s target list. If changes to the target list result in an under delivery of devices or locations against what was originally contracted, Client will remain responsible for the full campaign and CheckedUp shall not be responsible for any under delivery caused by such changes to the target list.
     

4. Measurement and Target ROI

   • For programs with a targeted ROI, a third-party analytics vendor will be selected to measure the campaign.  Targeted ROI (pre-campaign) will be compared with reported ROI (post campaign) based on third party measurement.
   • All Measurements will be performed using a third-party, industry standard promotion response methodology.  Unless otherwise agreed to, these studies will be pre/post, test/control analyses measuring the impact of the CheckedUp campaign on a particular product or product group.  When conducting research, the third party will:
     • Link the CheckedUp network list of physicians to prescription (Rx) or medical claims (Mx) data.
     • Match network healthcare providers (HCPs)/accounts exposed to the campaign (potential test) to like healthcare providers/accounts not exposed (control). HCPs or accounts will be matched based on characteristics such as prior prescribing behavior or sales volume, specialty, geography, etc.
     • Compare changes in volume for product/product group among the two groups to estimate program lift
     • Report statistically significant findings and calculate campaign ROI (using IQVIA WAC)
   • Prior to study kick off, all inputs will be confirmed and agreed upon by CheckedUp and the client.
   • ROI Target Considerations: If the third-party determines that an ROI target was not achieved during the measurement period, CheckedUp will at its discretion perform a make good. The make good scope will be determined by CheckedUp based on inventory availability for the period in time the make good is to be aired. The criteria for the make good will be the same as the purchase criteria – though the exact sites in the campaign may not.  Per the make good, CheckedUp will continue to air the program at no additional cost–delivering the volume of plays in the number of offices for the length of time needed to make up the difference from estimated returns (i.e., Estimated Program Return – Actual Program Return = Make Good Value).  The exact dollar amount of the make good value is dependent upon the number of incremental prescriptions generated against the original estimate.  Make goods (i.e., media delivery at no cost) will not exceed an additional six months beyond the end of the campaign period nor will there be a supplemental analysis of the make good campaign provided by the third party.

5. PAYMENT

• Payment for the Services shall be as set forth in the applicable Insertion Order. Customer is responsible for all taxes imposed on any payment from Customer to CheckedUp under this Agreement. Payment is net thirty (30) days of the applicable invoice date. Late payments shall incur a one and one-half percent (1.5%) late fee on a monthly basis until such payment is made. Customer agrees to reimburse CheckedUp and/or its assignees for all reasonable attorneys’ fees and/or collection costs incurred in attempting to collect on Customer’s delinquent balances.
• End of Campaign: At the end of a campaign, CheckedUp shall send to client a final invoice and proof of play report. Once CheckedUp has sent both, the client shall have 90 days to dispute the invoices or campaign delivery by notifying CheckedUp in writing of any objections to the invoices or campaign delivery. Such notice must be timely and in reasonable detail as to each disputed item or amount and the basis for client’s disagreement. CheckedUp shall have 30 days to review any dispute and work with client in good faith to resolve any such dispute. If client does not timely send a written dispute relating to the campaign, the campaign will be considered delivered in full.
  

6. CONFIDENTIALITY

   • It is understood that during the course of this 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 this 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 of like nature, but not less than a reasonable degree of care.
   • The Receiving Party shall use and disclose the Disclosing Party’s Confidential Information only for the purpose of this Agreement and shall not disclose, transfer, publish, or otherwise make such 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 such Confidential Information for the purpose of this Agreement, and are bound by written obligations of non-use and non-disclosure at least as protective of Disclosing Party as those imposed by this Agreement. The Receiving Party shall immediately notify the Disclosing Party if Receiving Party becomes aware that any of Disclosing Party’s Confidential Information has been lost, stolen or inadvertently disclosed.
   • The restrictions contained in Section 1 will not apply to any information which (i) was known to a Receiving Party without confidentiality obligations 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 to Receiving Party 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 Section 5.1, the non-breaching Party, in addition to any other rights or remedies available, will be entitled to seek injunctive relief against the breaching Party.
   • Upon expiration or termination of this Agreement, or upon the Disclosing Party’s earlier request, Receiving Party shall return to Disclosing Party all tangible embodiments and derivatives of Disclosing Party’s Confidential Information that are in Receiving Party’s possession or control. The non-use and non-disclosure obligations of this Section 5 shall survive for five (5) years after termination or expiration of this Agreement.

7. INTELLECTUAL PROPERTY

   • License. For the term of this Agreement, Customer hereby grants to CheckedUp a non-exclusive, royalty-free, fully paid-up, sublicensable (under multiple tiers) license to: (a) use, perform, and display the Advertisements on or in connection with the Equipment; (b) use and otherwise exploit any Advertisements or Customer Materials for the purposes of performing the Services (including, for clarity, developing any Developed Advertisement); and (c) use all Customer intellectual property associated therewith for the performance of the Services.
   • CheckedUp IP. The Parties agree that, as between the Parties, CheckedUp shall own all right, title, and interest in and to all inventions, discoveries, intellectual property, copyrights, and moral rights in and to the Developed Advertisement and any other deliverables under this Agreement (collectively, “CheckedUp IP”), and to the extent that any right, title, or interest in or to CheckedUp IP vests in Customer, Customer hereby assigns to CheckedUp all such right, title, and interest in and to CheckedUp IP. At CheckedUp’s reasonable request and expense, Customer shall reasonably assist CheckedUp in perfecting such assignment. Customer hereby grants to CheckedUp a nonexclusive, royalty-free, worldwide, fully paid-up, sublicensable (with the right to grant and authorize sublicenses) license under any Customer intellectual property (including Customer Materials) to the extent incorporated into CheckedUp IP for all purposes.
   • Equipment. For clarity, as between CheckedUp and Customer, CheckedUp owns all right, title, and interest in and to the Equipment.

8. INDEMNIFICATION

• The Customer shall indemnify and hold harmless CheckedUp, 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: (a) the advertisement, promotion, and endorsement of, use of, or any alleged defect in any product or service in any Advertisement promoted or otherwise displayed by CheckedUp pursuant to this Agreement, including any claim arising from the sale or license of such products or services; (b) Customer Materials; (c) Customer’s performance, delay, or failure to perform under this Agreement; (d) Customer’s breach of any representations or warranties under this Agreement; or (e) any other act, omission, or misrepresentation by Customer or breach of applicable laws. CheckedUp may participate in such defense at its own expense with counsel of its own choice. Customer shall not settle any without CheckedUp’s prior written consent.

9. DISCLAIMER OF WARRANTIES

   • CheckedUp makes no representations or warranties, express, implied, or statutory with respect its Confidential Information, Advertisements, Equipment, and Services, including, without limitation, any implied warranties of merchantability or fitness for a particular purpose, and any implied warranties arising from the course of dealing or course of performance. CheckedUp provides its Confidential Information, the Developed Advertisement, Equipment, and all Services on an “as-is” and “as-available” basis, without any warranty of any kind and without any guarantee of continuous or uninterrupted display or distribution of any Advertisement. In the event of interruption of display or distribution of any Advertisement, CheckedUp’s sole obligation will be to restore Service as soon as practicable. Customer is solely responsible for all acts and omissions taken or made in reliance on the Services, Customer Materials, and Advertisements, including, without limitation, inaccurate or incomplete information.

10. LIMITATION OF LIABILITY

    • In no event will CheckedUp’s liability to Customer or to any third party, whether caused by failure to deliver, nonperformance, defects, or otherwise, exceed the lesser of (a) the aggregate amounts paid by Customer to CheckedUp hereunder during the three (3) month period immediately preceding the event giving rise to such liability; or (b) $1,000; unless otherwise provided for in this Agreement. In no event shall CheckedUp be liable in any way to Customer 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 this Agreement. The limitations contained in this 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).

11. TERM; TERMINATION

    • Term. The Agreement is effective as of the effective date set forth in the Insertion Order, and will continue in full force and effect until the end of the term as described in such Insertion Order, unless earlier terminated pursuant to this Section 10.
    • Termination for Convenience. CheckedUp may terminate this Agreement for convenience upon sixty (60) days’ written notice to Customer.
    • Termination for Cause. Either Party may terminate this Agreement for breach upon thirty (30) days’ written notice to the other Party, provided that such other Party does not remedy such breach during such thirty (30)-day cure period. The Agreement may be terminated upon written notice by a Party to another Party 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.
    • Effects of Termination. For clarity, termination of this Agreement with respect to one Insertion Order does not automatically terminate this Agreement with respect to any other Insertion Order. Upon early termination of this Agreement, as applicable, Customer shall pay to CheckedUp the pro-rata amount of payments under the applicable Insertion Order for the Services performed by CheckedUp as of such termination date, or CheckedUp shall refund to Customer the pro-rata amount of payments under the applicable Insertion Order for the Services not yet performed by CheckedUp as of such termination date. Notwithstanding anything to the contrary, Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11.4, 12.3, and 13 shall survive termination or expiration of this Agreement in accordance with their terms.

12. REPRESENTATIONS AND WARRANTIES

    • General. Customer is solely responsible for any liability arising out of or relating to the Advertisement and Customer Materials, and any material to which users can link through the Advertisement, or any liability arising out of or relating to the Advertisements’ underlying products or services. Customer represents and warrants that no Advertisements, Customer Materials, or any of the underlying products or services: (a) infringe on any third party’s copyright, patent, trademark, trade secret, or other proprietary rights or right of publicity or privacy; (b) violate any law, statute, ordinance, or regulation, including, without limitation, laws and regulations governing export control, false advertising, or unfair competition; (c) are defamatory or trade libelous; (d) are pornographic or obscene; or (e) contain viruses, trojan horses, worms, time bombs, cancelbots, or other similar harmful or deleterious programming routines. Customer further represents and warrants that no third-party licenses, releases, or permits are required for CheckedUp to perform the Services.
    • Regulatory. Customer further represents and warrants that Advertisements and Customer Materials shall be approved for distribution according to its own medical, regulatory, and legal processes (or, if Customer is an advertising agency acting on behalf of a third-party client, according to such third-party client’s medical, regulatory, and legal processes), and is not in violation of the Federal Food and Drug Cosmetic Act (“FDCA”), 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). If any Advertisement requires amendment, removal, or destruction because of errors, omissions, or corrections required by Customer or a federal or state regulatory body, CheckedUp shall initiate its then-current Standard Operating Procedure for Program Updates. For clarity, CheckedUp will neither have nor exercise any control or discretion over which Participating Providers or other physicians or healthcare providers practice medicine. Nothing in this Agreement permits or shall be construed as permitting or obligating CheckedUp to affect or influence the professional medical judgment of any Participating Provider or other physicians or healthcare providers.
    • Debarment. Customer additionally represents and warrants that neither it nor any of its employees or agents developing Advertisements has been debarred under Article 306 of the FDCA, 21 U.S.C. §335a(a) or (b), or any equivalent foreign or local law, rule or regulation, and neither appears on the United States Food and Drug debarment list. Customer represents and warrants that neither it nor any of its employees or agents developing Advertisements has committed any crime or conduct that could result in such debarment or exclusion from any governmental healthcare program. Customer represents and warrants that, to its knowledge, no investigations, claims or proceedings with respect to any such crimes or conduct are pending or threatened against it or any of its employees or agents developing Advertisements. Customer agrees and undertakes to promptly notify CheckedUp if it or any of its employees or agents developing Advertisements becomes debarred or proceedings have been initiated against either of them with respect to debarment, whether such debarment or initiation of proceedings occurs during or after the term of this Agreement.

13. MISCELLANEOUS

    • No Compensation. CheckedUp and Customer agree (a) any payments provided under this Agreement are consistent with arm’s length transactions for services and products of the kind provided hereunder, (b) such payments are not in exchange for any agreement by CheckedUp or Participating Providers, whether express or implied, to prescribe, cause to be prescribed, use, or recommend the prescription or use of any product of Customer, 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).
    • Miscellaneous. The Agreement contains the entire agreement and understanding between the Parties on its subject matter and supersedes all prior agreements and understandings on such subject matter. No provision of this Agreement may be modified or waived except in writing signed by both Parties. If any provision of this Agreement is found unenforceable by a court of competent jurisdiction, such provision shall be struck and the rest of this Agreement shall be interpreted to reflect the Parties’ intent and shall continue in full force and effect. Neither Party will be deemed to be in default under this Agreement because of failure to perform any obligation if such failure is caused by fire, embargo, strike, war, acts of God, or any other cause beyond such Party’s reasonable control. The Parties are independent contractors of each other under this Agreement; this Agreement does not create any partnership, joint venture, or agency relationship between the Parties. There are no third-party beneficiaries to this Agreement. Neither Party may assign or transfer any of its rights or obligations under this Agreement without the other Party’s written consent, not to be unreasonably withheld; provided, however, that either Party may assign or transfer this Agreement to a successor to all or substantially all of its business or assets to which this Agreement pertains, whether by merger, sale, reorganization, reincorporation, operation of law, or otherwise. The Agreement shall be governed by the laws of the State of New York, without regard to conflict-of-laws provisions. The Parties consent to the jurisdiction and venue of the state and federal courts located in New York City, New York, for any dispute arising out of this Agreement.