Type of Surgery

Surgery.com - Advertising Agreement

ADVERTISER AGREEMENT
UPDATED: MAY 7, 2009

THIS ADVERTISER AGREEMENT, (“Agreement”), is made and entered into, as of the date of Surgery.com, LLC signature below, by and between, Surgery.com, LLC (hereinafter referred to as “Surgery.com”), a California Limited Liability Corporation with a place of business at 880 Harrison Street, San Francisco, CA 94107, and you as the Advertiser (“Advertiser,” “You,” or “Your,”).  The purpose of this Agreement is to set forth the terms and conditions upon which Surgery.com will perform certain advertising services for Advertiser pursuant to insertion orders.  


UPON SURGERY.COM’ ACCEPTANCE OF YOU AS AN ADVERTISER, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS AND CONDITIONS CAREFULLY AND AGREE TO THE SAME.  IF YOU DO NOT AGREE WITH ANY OF THESE TERMS AND CONDITIONS, OR IF ANY OR ALL OF THE FOLLOWING ARE PROHIBITED WITHIN YOUR JURISDICTION, DO NOT ACCESS OR USE THIS WEB SITE, THE SERVICES, OR ANY INFORMATION CONTAINED ON THIS WEB SITE.  YOUR ACCESS TO AND USE OF THIS WEB SITE CONSTITUTE YOUR AGREEMENT TO ABIDE BY, AND UNDERSTANDING OF, EACH OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU HAVE ANY QUESTIONS, VISIT THE "CONTACT US" SECTION OF OUR WEB SITES TO SUBMIT QUESTIONS TO OUR CUSTOMER SERVICE REPRESENTATIVES.


1. DEFINITIONS


a.         “Advertisement” or “Advertisements” means all written or graphically rendered marketing materials provided for in an Insertion Order (including but not limited to banners, text or graphic links, pop-ups, emails and newsletters or any other similarly designed advertising format);


b.         “Campaign” means the specifications and period upon which Advertisements will be placed by Surgery.com as set forth in the applicable Insertion Order;


c.         “Confidential Information” includes, without limitation, this Agreement, the Insertion Order, all information related to the Campaign, information pertaining to Surgery.com’ Publishers and other Advertisers, marketing strategies, non-public financial and commercial information, and trade secrets;


d.         “Cost Per Action” or “CPA” means the required payment by Advertiser for (i) Leads in compliance with paragraph 7 below or (ii) if specifically set forth in an Insertion Order, such other action or criteria set forth therein;


e.         “Insertion Order” means an order document signed by Advertiser to Surgery.com requesting specific Advertisements and/or Advertisement Campaigns;


f.          “Lead” means every time a visitor fills out an inquiry form and provides contact data as defined by a client insertion order;


g.         “Service” or “Services” means the placement of the Advertisements provided by the Advertiser according to the applicable Insertion Order;


2. EFFECTIVE DATE AND TERMS.  This Agreement is effective upon transmission from Surgery.com of a written confirmation that the initial Insertion Order is accepted and the Campaign has begun. Upon acceptance by Surgery.com, each Insertion Order is incorporated herein by this reference. This Agreement will remain in effect until terminated as permitted herein.  In the event of any inconsistency between the Insertion Order and this Agreement the Insertion Order will control; however, any modifications to sections 8, 11, 12, 13, 14, 15, 16, 17 and 20 via an Insertion Order must specifically reference the section being modified and require the written approval of both Surgery.com and Advertiser.   


3. SCOPE OF SERVICE


a.         No Design Services.  Unless otherwise detailed in the applicable Insertion Order, Advertiser acknowledges that Surgery.com is not obligated to provide any creative or design services to Advertiser.


b.         Advertisement Modification.  Surgery.com will not change, modify or optimize Advertisements at any time without Advertiser’s prior written approval (however, Advertiser agrees that Surgery.com may, without Advertiser’s prior approval) make changes (within any restrictions set forth in the applicable Insertion Order) effecting sizing and other factors so long as such changes do not materially alter the overall presentation of the Advertisement).  Unless such materials are generated or provided by Surgery.com, Advertiser is responsible for submitting all supporting materials for each Advertisement (defined as artwork, active URL's and active target site) in accordance with the requirements stipulated in the Insertion Order and Surgery.com’ other criteria, which may be provided to Advertiser on an as needed basis.


c.         Advertisement Specifications.  Final specifications for each Advertisement must be submitted to and approved by Surgery.com within a reasonable period of time following receipt of the Insertion Order. In accordance with the applicable Insertion Order, Surgery.com will use commercially reasonable efforts to deliver no less than the number of click-throughs, Leads, sales, or impressions set forth therein.


4. SURGERY.COM PARTNERS.  Advertiser acknowledges and agrees that Surgery.com may provide the Services directly and/or via third party partners (including without limitation third-party internet content providers (“Publishers”).  Advertiser hereby agrees that Surgery.com may sublicense its rights under this Agreement to such third party partners for the purpose of performing the Services. 


5. CAMPAIGN TERM.  Surgery.com will use commercially reasonable efforts to have Advertisements placed on the Campaign start date requested in the applicable Insertion Order, and unless terminated as provided in this Agreement an Advertisement will remain placed for the Campaign period designated in the applicable Insertion Order. Unless specifically prohibited in the applicable Insertion Order, Surgery.com reserves the right to extend the Campaign in order to deliver the Advertisement in compliance with the specifications set forth in such Insertion Order. If advertiser provides written acknowledgement at the end of the Insertion Order term that they willing to continue to receive advertising services the Insertion Order will continue in effect on a month to month basis as long as Advertiser acknowledges receipt of advertising services.


6. CAMPAIGN HOLD AND CANCELLATION.  Advertiser may not cancel any Advertisement or Campaign which is subject to a binding Insertion Order unless Advertiser is provided specific cancellation rights in such Insertion Order.  Advertiser may request that an Advertisement and/or a Campaign be placed on hold, subject to Surgery.com’ review and written agreement. Unless a different period is provided in the Insertion Order, all Advertiser cancellation requests require a five (5) business day advance written notice be provided to Surgery.com.  During such period from receipt of such request to remove and/or deactivate a currently active Advertisement (“Removal Period”) Advertiser is liable for all CPA accrued during this Removal Period. In the event Advertiser deletes, cancels, disables or otherwise interferes with an Advertisement without Surgery.com’ prior written consent, Advertiser will be liable, as liquidated damages, for a sum equal to the total fees that Surgery.com would have recognized from the full Campaign (as reasonably estimated by Surgery.com based upon relevant performance data and other metrics applied by Surgery.com.  


7. LEAD VALIDITY AND REVERSAL. Cost Per Action shall be payable only on Leads that are deemed valid pursuant to this Section 7.a. and that are not reversed under Section 7.b. 


a.         Lead Validity.  A Lead will be deemed valid as set forth in this Section 7.a.
(i)         Surgery.com may require that Advertiser install a tracking pixel (“Tracking Pixel”), which will be programmed by Surgery.com with the criteria for valid Leads.  Advertiser is solely responsible for installation and use of the Tracking Pixel and may not make any modification to the Tracking Pixel.  Leads will be deemed valid as tracked by the Tracking Pixel.  In the event that the Tracking Pixel is not properly installed or of any unauthorized modification (“Tracking Error”) made by Advertiser, Advertiser shall have three calendar days to correct the same and notify Surgery.com of such correction.  Failure to make such corrections will result in all Leads tracked being deemed valid.  Surgery.com reserves the right to make additional equitable adjustments to the number of valid Leads as a result of such Tracking Error.  No Lead reversals will be permitted for Leads which result from Tracking Error.
(ii)         If the Tracking Pixel is not used, a Lead will be deemed valid if it conforms to all requirements of the insertion order.


b.         Lead Reversal.  Valid Leads may be reversed in accordance with an insertion order. Notice must be provided to Surgery.com for any Leads reversed.


c.         Reporting and Final Determination of Leads.
(i)         Advertiser must provide a monthly CPA report for all Advertisements placed by Advertiser with Surgery.com (“Monthly Report”).  The Monthly Report is due on or before the fifth business day of the month following the month in which the Services were delivered. The Monthly Report shall include gross Lead totals and a Lead reversal file summary. The Lead reversal file summary must include: all submitted data, the unique user ID, date of Lead generation and a specific non-generic reversal reason as permitted in the relevant insertion order.
(ii)         Final counting and tracking of Leads for Cost Per Action billing purposes will be based on Surgery.com’ internal tracking procedures or Advertiser’s Monthly Report data of valid Leads, whichever is higher. 


8. CONTENT.  Surgery.com will not accept or place any Advertisement that, in Surgery.com’s determination in its sole discretion contains, promotes or links to  inappropriate content which includes, but is not limited to: content regarding use of alcohol, tobacco  or  illegal  substances;  nudity,  sex,  pornography, or adult-oriented content;  expletives  or  inappropriate  language;  content  promoting  illegal or unethical activity,  racism,  hate,  "spam,"  mail  fraud,  pyramid schemes, credit-repair or  advice  not  permitted under law including any material of any kind or nature that is in violation of the federal Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (“CAN-SPAM Act of 2003”); content that is libelous, defamatory, infringing, false, misleading, contrary to public policy, or otherwise unlawful; content which includes diversionary links, exit “pops” or any other element which distracts from the primary advertisement content; content which may bring Surgery.com and/or its affiliated companies negative publicity, or any other content  deemed  inappropriate  by  Surgery.com  in  its  sole  discretion.


9. PLACEMENT AND POSITIONING.  Surgery.com will use reasonable commercial efforts to comply with the Advertisement specifications contained in the Insertion Order, including all placement requests. Advertiser hereby acknowledges and agrees that Surgery.com does not control Advertisement placements, and cannot guarantee any particular Advertisements placement, nor its physical positioning on any Publisher website.  Surgery.com reserves the right to reject, not publish, or not place any Advertisement at any time in its sole discretion.  A decision by Surgery.com to not publish or not place any requested Advertisement does not constitute a breach of this Agreement nor otherwise entitle Advertiser to any legal remedy, provided an appropriate refund will be made for any prepayment by Advertiser for the Campaign.


10. NON-CIRCUMVENT.  Advertiser agrees and acknowledges that Surgery.com has expended a substantial amount of time and costs to develop its arrangements with Publishers in order to offer the Services to Advertiser.  Accordingly, during the term of this Agreement and for a period of one hundred and twenty (120) days commencing on the end date of then latest Campaign, without Surgery.com’ prior written approval, Advertiser may not enter into an agreement or arrangement for an advertising campaign (including but not limited to placement of an insertion order) either directly or indirectly (e.g. through an advertising agency or other similar competing advertising network) with (i) any entity that Surgery.com has identified as a Publisher or (ii) a Publisher who has previously promoted an offer of Advertiser via Surgery.com.  In the event Advertiser breaches this provision Surgery.com is entitled to monetary compensation equal to the value of the total revenue Surgery.com would have realized had such campaign be provided via Advertiser, plus any and all expenses incurred by Surgery.com to enforce this provision, including attorney’s fees. 


11. PAYMENT TERMS.  Advertiser agrees to pay to Surgery.com the Cost Per Action as set forth in the Insertion Order.  All payments are due Net 30 days from the date of each invoice; alternate or additional pre-payment or deposit terms may be indicated on the applicable Insertion Order.  All payments must be made to Surgery.com LLC via wire transfer, check, money order or cashiers check; credit card payments are not accepted without the prior written approval of Surgery.com.


a.         Net30 Accounts.  Net30 accounts may be established by Surgery.com in its sole discretion and Surgery.com may cancel or change the terms of Customer's credit account at any time, subject to advance notice by Surgery.com.  Payment of the total invoice amount, without offset or deduction, is due 30 days from the end of month in which the Leads or actions are delivered.  On any past due invoice, Surgery.com may charge interest from the payment due date to the date of payment (at 1½% per month, or the maximum rate allowed by law), plus reasonable attorney’s fees and collection costs.


b.         Payment Assignment.  Surgery.com shall have the right to assign its right to collect and receive any and all payment, in whole or in part, due under this Agreement by Advertiser to any third party.  Advertiser acknowledges and agrees that such third parties are therefore limited third-party beneficiaries of this Agreement to the extent of such assignment.  Any payment to a third party pursuant to an assigned claim shall not relieve Advertiser’s obligations with respect to any payment not so assigned. 


12. FORCE MAJEURE.  Neither party will be liable for failure or delay in performing any of its obligations if such failure or delay is due to circumstances beyond the party’s reasonable control, including, without limitation, acts of God, any governmental body or failure of software or equipment of third-parties.  This section does not apply to the obligations in section 10.


13. WARRANTY DISCLAIMER.  SURGERY.COM MAKES NO WARRANTY REGARDING ANY SERVICES, SOFTWARE OR OTHER MATERIALS PURCHASED OR OBTAINED FROM SURGERY.COM (DIRECTLY OR THROUGH PUBLISHERS OR OTHER THIRD PARTIES). YOU EXPRESSLY AGREE THAT USE OF ALL WEB SITES AND SERVICES ARE AT YOUR SOLE RISK.  ANY AND ALL WEB SITES AND THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, SURGERY.COM EXPRESSLY DISCLAIMS, ON BEHALF OF ITSELF AND ITS PUBLISHERS, ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED BY LAW, COURSE OF CONDUCT, INDUSTRY STANDARDS, CUSTOM OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.


14. ADVERTISER WARRANTY.  Advertiser warrants and represents that (a) Advertiser has the right and authority to permit the use, reproduction, distribution and transmission by Surgery.com and its Publishers of the Advertisements and all other materials provided by Advertiser to Surgery.com; (b) the Advertisements do not promote or make claims that are not easily provable, and Advertiser has sufficient substantiation for all claims made; (c) the use, reproduction, distribution, or transmission of the Advertisements and any and all other materials provided by Advertiser to Surgery.com shall not, and the Advertisements and any and all other materials provided by Advertiser to Surgery.com do not, violate any foreign or domestic, federal, state, or local law or regulation, or any rights of any third party, including, but not limited to, any copyright, patent, trademark, trade secret, music, image, or other proprietary, property or contractual right, or constitute false advertising, unfair competition, invasion of privacy or rights of celebrity, or any other right of any person or entity.


15. LIMITATION ON LIABILITY.  UNDER NO CIRCUMSTANCES WILL SURGERY.COM BE LIABLE FOR INDIRECT, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF SURGERY.COM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF REVENUE, PROFITS OR DATA ARISING FROM BREACH OF THIS AGREEMENT, THE SERVICES (INCLUDING, WITHOUT LIMITATION, SURGERY.COM’ WEB SITE) OR ARISING FROM ANY OTHER PROVISION OF THIS AGREEMENT.  IN NO EVENT SHALL SURGERY.COM’ AGGREGATE LIABILITY ARISING OUT OF OR WITH RESPECT TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID BY YOU UNDER, OR IN CONNECTION WITH, THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.


16. INDEMNIFICATION.  Each party will indemnify and hold harmless the other party from and against any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by a party (and its’ successors and assigns) arising out of or relating to the other party’s breach of any provision or term of this Agreement. In addition Advertiser will indemnify and hold harmless Surgery.com from and against any and all liability, loss, damage, claim and expense, including reasonable legal fees and expenses that may be incurred by Surgery.com, and/or its’ Publishers arising out of or relating to (i) the content or subject matter of any Advertisement, Insertion Order or collateral information to the extent used by Surgery.com or its Publishers in accordance with this Agreement (including, but not limited to, allegations that subject matter violates the rights of a third party, causes emotional or physical injury to any third-party is defamatory or obscene or violates any law, regulation or other judicial or administrative action); (ii) the advertisers intellectual property, including but not limited to any infringement action, misuse, registration or non-registration. 

 

17. CONFIDENTIALITY.  Unless otherwise required by law or court order, You agree to keep Surgery.com’ Confidential Information strictly confidential and not disclose such information to any third party, including but not limited to, any competing affiliate network, advertising network, advertiser, or to the media.  You agree to take all necessary action to protect the confidentiality of the Confidential Information.  You may only disclose Confidential Information Your officers, directors, employees, attorneys and advisors on a strict need to know basis only, provided that such person is subject to aconfidentiality agreement sufficient to comply with the terms of this Agreement.


18. ADVERTISER REPRESENTATIVE.  In the event this Agreement is being executed by an agency or other representative (“Agent”) on behalf of Advertiser, Agent hereby represents that it has all due authority to create a legally binding agreement on behalf of Advertiser and this Agreement shall be so binding.  Agent further agrees that it will be jointly and severally liable for any and all payments, damages and other liabilities under this Agreement to which Advertiser would be responsible. 


19. TERMINATION. Surgery.com may terminate or cancel this Agreement at any time in its sole discretion, upon written notice to Advertiser (such notice may be in the form of electronic notification).  


20. GENERAL.


a.         California Law and Jurisdiction.  The laws of the State of California will exclusively govern any dispute between Surgery.com and Advertiser without reference to California's conflict of laws principles.  Advertiser hereby submits to the exclusive jurisdiction of the state and federal courts located in or nearest to San Francisco County, California for all legal proceedings relating to or arising from this Agreement


b.         Assignment.  Advertiser may not assign this Agreement without the prior written consent of Surgery.com.  Surgery.com may not assign this Agreement without prior written consent of Advertiser, provided however Surgery.com may assign this Agreement to its parent or other affiliated corporate entity or to a successor in interest without consent from or notice to Advertiser.  This Agreement is binding on successors and assigns.


c.         Modification.  An Insertion Order may only be modified via written notice and the written agreement of both parties (such notice may be in the form of electronic notification).  Notwithstanding the foregoing, in the event any modifications requested to an Insertion Order are requested by Advertiser in writing, and such changes are subsequently implemented by Surgery.com (with or without any other written confirmation), such modifications will be deemed accepted by both parties.  No modification will be effective to this Agreement unless made in writing and signed by both parties.  


d.         Relationship.  Surgery.com and Advertiser are independent contractors and agree that this Agreement does not establish any agency, joint venture or partnership.


e.         Waiver.  Surgery.com' failure to object to any document, communication, or act of Advertiser will not be deemed a waiver of any of these terms and conditions and any waiver shall not be deemed to be a waiver of any subsequent defaults of the same or different kind.


f.          Severability.  If any provision of this Agreement is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of the Agreement, which shall remain in full force and effect. 


g.         Compliance with Laws.  Advertiser and Surgery.com will comply with all applicable laws and regulations.


h.         Survival.  In the event this Agreement is terminated, the following provisions will survive such termination: Sections 10, 13, 14, 15, 16, 17, 18 and 20.