DIRECTORY LISTINGS AND LEAD GENERATION TERMS & CONDITIONS
These Terms and Conditions (“T&Cs”) shall be incorporated by reference into and made a part of any Insertion Order(s) (“IO”) executed by FertilityAuthority.com, LLC (“FA”) and the advertiser identified in the IO (“Advertiser”). The T&Cs, together with the applicable IO, will be referred to as the “Agreement”. FertilityAuthority owns IVFAdvantage.com.
- Services. - FA may serve directories consisting of listings of physicians, clinics, and/or fertility specialists (the “Directories”, and each listing within a Directory, an “Upgraded Listing”) on website pages that are owned, operated, authorized, or hosted by or for FA and its affiliates (the “FA Company Websites”) and the network of advertising channels, including all forms of media, applications and devices, through which FA distributes ads, including directories, whether on or off the FA Company Websites (the “FA Distribution Network”), in its discretion. In addition, FA may serve lead generation listings of physicians, clinics, and/or fertility specialists within Directories on the FA Distribution Network (a “Lead Generation Listing”), in its discretion. When a user clicks on a Lead Generation Listing, such user will be directed to a form created and hosted by or for FA that prompts the user to provide information which may include the user’s first name, last name, email address and telephone number (the “Form”). When a user clicks on an Advertiser’s Upgraded Listing the information that the user provides is the “Lead,” and any information that personally identifies any individual user is Personally Identifiable Information (“PII”). FA will, as specified in the IO, either (i) display Advertiser’s Upgraded Listing in a Directory, or (ii) display Advertiser’s Lead Generation Listing in a Directory and transmit the Leads to the email address provided by Advertiser on the IO. The term “Listing” refers to an Upgraded Listing or a Lead Generation Listing.
- Provision of Ad Content. - Content for a Listing and the Form, which content will include a profile of Advertiser and its fertility-related medical services and may include trademarks, service marks, logos and other distinctive brand features of Advertiser (the “Ad Content”), will be provided to FA by or on behalf of Advertiser. All Ad Content is subject to FA’s approval and must comply with FA’s then current specifications and advertising policies [note: to be posted], including the lead-time prior to display of the Listing. FA may reject, in part or whole, Ad Content and/or stop displaying any Listing at any time for any or no reason (including, but not limited to, a belief that the display of the Listing may subject FA to liability).
- Terms of Payment. - Advertiser agrees to pay FA (i) a subscription fee for the display of the Listing in a Directory and, if applicable, (ii) a fixed per Lead fee that applies to any and all Leads delivered to Advertiser during each month of the subscription term of this Agreement. Unless a long period is specified in the IO, the subscription term is one year and will renew automatically for additional one-year periods unless terminated by written notice by either party at least thirty days prior to the expiration of the then-current annual period. The amount of the subscription fee is set forth in the IO and paid ten days after receipt of the invoice which will be sent electronically via email. The amount of the Lead fee is set forth in the IO, and FA’s measurement of delivered Leads is the sole, official and definitive measurement under this Agreement. Invoices for the Leads are sent electronically via email each month and Advertiser agrees to pay invoice on the first business day of every month via pre-authorized credit card payment, ACH, wire, or other pre-approved electronic means. FA reserves the right to charge a late fee of the lesser of 1.5% per month or the maximum rate allowable by law in the event that FA does not receive payment by the date payment is due. Advertiser will pay FA’s reasonable expenses, including attorneys’ fees and costs, incurred in collecting past due amounts. FA may suspend performance under any agreements with Advertiser if Advertiser does not make timely payment or if Advertiser’s credit becomes impaired. Advertiser is responsible for the payment of any sales or other similar taxes.
- Cancellation, Assignment or Resale. - Advertiser may not (1) cancel the IO or (2) resell, assign or transfer any of Advertiser’s rights under this Agreement. In addition, subject to the license granted to FA in Section 3 above, the Leads are for Advertiser’s use only, and Advertiser may not disclose, sell, license or otherwise transfer any of the Leads. FA may terminate this Agreement immediately without liability if Advertiser attempts to resell, assign or transfer any of its rights hereunder, or breaches any obligation set forth in this Agreement and such breach is not cured within ten (10) days of receipt of notice of such breach. After the first anniversary of the effective date of this agreement, FA may terminate this Agreement for convenience with prior notice to Advertiser. In the event FA terminates this Agreement for convenience, FA will refund a pro-rated portion of the subscription fee based on the period remaining in the subscription term. Sections 4, 7-13 and the second sentence of this Section 5 shall survive expiration or earlier termination of this Agreement.
- Reports. - FA will provide a lead report monthly that includes the following: name, email address, phone number, zip code, date of incoming Lead and total number of Leads.
- Advertising Services. - Advertiser agrees not to represent that services Advertiser will or may provide are or will be authorized by or under the direction or control of FA. Advertiser acknowledges that the fees paid under this Agreement are solely for marketing and advertising. Advertiser further acknowledges and agrees that FA does not (i) provide any referral services, (ii) recommend or endorse any providers of medical services, any specific medical tests, products or programs or any information otherwise provided by advertisers (including Advertiser), or (iii) provide professional medical advice, opinions, diagnosis or treatment. FA is an online aggregator of consumer interests and information that attempts to connect consumers with expressed interests in specified medical services to providers of such services by way of self-reported directory listings. FA does not represent or guarantee that a consumer will respond to Advertiser’s follow up, seek or need treatment or make an appointment with Advertiser, as a result of a Lead forwarded by FA to Advertiser. For the avoidance of doubt, Advertiser is responsible for handling any inquiries or complaints made by any Lead in respect of Advertiser information and/or services.
- Privacy Policies. - The Form, and any other pages on which Leads are collected, shall contain a link to, and be governed by, FA’s and Advertiser’s respective privacy policies.
- Security. - Advertiser will maintain all Leads and any PII in a secure environment and will have, at a minimum, industry standard security protocols in effect to protect the Leads and any PII.
- Indemnification. - Advertiser will indemnify, defend and hold harmless the FA Entities and its and their affiliates and their employees, representatives and agents against any claim, demand, action, investigation or other proceeding (“Claim”), including all damages, losses, liabilities, judgments, costs and/or expenses (including reasonable attorneys’ fees and costs) to the extent the Claim is based on or arises out of (i) the Ad Content, any programs, products or services of Advertiser and/or Advertiser’s website or business related to the Listing, and (ii) any breach or alleged breach of this Agreement, including without limitation, Section 7, 8, 9 or 10 of these T&Cs.
- Limitations. - THE FA SERVICES ARE PROVIDED "AS IS" AND FA MAKES NO, AND EXPRESSLY DISCLAIMS ANY, WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR OTHERWISE WITH RESPECT TO THE FA SERVICES OR THE FUNCTIONALITY, PERFORMANCE OR RESULTS OF USE THEREOF. FA SHALL NOT BE LIABLE TO ADVERTISER (NOR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM ADVERTISER’S RIGHTS) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR LOSS OF DATA, ARISING OUT OF THIS AGREEMENT, REGARDLESS OF WHETHER FA WAS ADVISED, HAD OTHER REASON TO KNOW, OR KNEW OF THE POSSIBILITY THEREOF. IN ANY EVENT, FA’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER THE CAUSE OF ACTION ARISES IN CONTRACT, TORT, OR OTHERWISE, SHALL NOT EXCEED THE AMOUNTS PAID AND PAYABLE BY ADVERTISER TO FA HEREUNDER. FA MAKES NO REPRESENTATION THAT THE OPERATION OF THE FA COMPANY WEBSITES WILL BE UNINTERRUPTED OR ERROR FREE AND WILL NOT BE LIABLE FOR THE CONSEQUENCES OF ANY INTERRUPTIONS OR ERRORS.
- Nature of Payments. - ADVERTISER HEREBY ACKNOWLEDGES AND AGREES THAT ADVERTISER SHALL NOT BILL THIRD PARTY INSURERS, INCLUDING GOVERNMENTAL HEALTHCARE PROGRAMS AND PRIVATE PAYORS, FOR ANY LISTING SERVICES OR ADVERTISING PROVIDED BY FA. The Parties hereby acknowledge that the price per Lead specified in the IO shall not depend or vary, in any way, based upon whether (a) such Lead received medical services or advice or (b) whether such Lead paid for any medical service or (c) the type of medical service, if any, received by such Lead or (d) the volume or value of medical services provided, if any, to such Lead.
- Confidential Information. - “Confidential Information” means any information disclosed to Advertiser by FA either directly or indirectly, in writing, orally, or by inspection of tangible objects, other than information that Advertiser can establish: (i) was publicly known and made generally available in the public domain prior to the time of disclosure to Advertiser by FA, (ii) becomes publicly known and made generally available after disclosure to Advertiser by FA other than through Advertiser’s action or inaction, or (iii) is in Advertiser’s possession, without confidentiality restrictions, prior to the time of disclosure by FA, as shown by Advertiser’s files and records. Advertiser shall not at any time: (i) sell, license, or transfer any Confidential Information, (ii) disclose or otherwise make available to any person or entity any Confidential Information (other than to those of Advertiser’s employees who are bound in writing by use and confidentiality restrictions which are no less protective of us than those contained in this Agreement and who have a legitimate need to know such Confidential Information in connection with this Agreement), or (iii) access, use, reproduce, or copy any Confidential Information, except as necessary in connection with the purpose for which such Confidential Information is disclosed to Advertiser and in accordance with this Agreement. Advertiser agrees to take all measures to protect the secrecy of, and to avoid disclosure and unauthorized use of, the Confidential Information. If required by law to disclose Confidential Information, Advertiser may do so provided that: (a) Advertiser gives FA prompt written notice of such requirement prior to such disclosure, (b) at FA’s request, Advertiser assists FA in obtaining an order protecting the Confidential Information from public disclosure, and (c) any such disclosure is limited to the minimum extent necessary to comply with the legal requirement. Except for the Leads, all Confidential Information shall remain FA’s personal property, and all documents, electronic media and other items containing or relating to any Confidential Information shall be delivered to FA, destroyed, or uninstalled immediately upon FA’s request or upon termination of this Agreement. Advertiser may not issue any press release or other public statement regarding this Agreement without FA’s prior written consent.
- Reservation of Right. - Notwithstanding anything to the contrary herein, FA and Advertiser agree that FA may revise these T&Cs with thirty days prior written or electronic notice to Advertiser, except that any revisions needed to comply with any legal requirements will be made immediately and Advertiser will be notified thereafter. In the event Advertiser chooses not to abide by the revised T&Cs, Advertiser may terminate this Agreement by written or electronic notice to FA and, except for the refund described in Section 5 above, FA will have no liability in the event of such termination.
- General Terms. - This Agreement is governed by and construed in accordance with the laws of the State of New York except its conflicts of law principles, and each party agrees to personal jurisdiction and venue in the federal and state courts for New York County, New York. If an agency is signing the IO on behalf of Advertiser, the agency is listed on the first page of the IO and represents that it has the authority to bind Advertiser to this Agreement and agrees to indemnify the FA Entities for any breach by agency of this Agreement. Agent and Advertiser will be joint and severally liable. FA and its subsequent assignees, if any, may assign, delegate, sublicense, or otherwise transfer from time to time this Agreement, or the rights or obligations hereunder, in whole or in part, to any person or entity. The parties agree that their relationship hereunder is that of independent contractors. Neither party shall be deemed to be the agent, partner, joint venture, franchisor‐franchisee, nor employee of the other, and neither shall have any authority to make any agreements or representations on the other’s behalf. The IO and these T&Cs are the complete and entire agreement between the parties and supersede any other agreements (whether written or oral) between the parties on this subject. Except as set forth in Section 16 above, this Agreement may only be amended by a written agreement executed by an authorized representative of each party. Invoices, reports, notices or any other communication will be sent electronically to Advertiser’s email specified in the IO.