This Advertising Agreement (this “Agreement”) is by and between you (the “Advertiser” or “Customer”) and PatientPoint Health Technologies, LLC, and/or its subsidiaries and affiliates, as applicable (“PatientPoint,” both PatientPoint and Advertiser individually as “Party” and collectively as the “Parties”).
1. Services. PatientPoint will provide the services set forth in the applicable enrollment agreement and described further herein on behalf of Advertiser (“Services”) as agreed upon in the Advertising Agreement and as further described in these Additional Terms and Conditions.
2.Process. For all Services, Advertiser will designate a contact liaison on the applicable enrollment agreement. PatientPoint will conduct a kickoff call to confirm all agreed upon solutions. Your assigned PatientPoint Account Manager will schedule and conduct this kickoff call. Fulfillment timeframes and expectations will be discussed.
3. Advertisement Approval. As part of the fulfillment process, PatientPoint as applicable will deliver proofs of the purchased solution (when applicable) for Advertiser’s approval. Once requested changes have been made by PatientPoint and Advertiser provides final approval, the solution(s) will be approved for market distribution.
4. Advertiser Responsibilities.
a) Advertiser will make its personnel, vendors and other partners available to facilitate PatientPoint’s delivery of Services.
b) Advertiser shall not provide content that contains inaccurate information (including inaccurate medical information), false or misleading claims or any content that results or may result in a material detriment to PatientPoint’s business. The Advertiser shall promptly provide notice of such items to PatientPoint, and PatientPoint and the Advertiser shall discuss and mutually agree upon modifications to the Services as necessary to address such matters.
c) If the purchased solution(s) require assets (logos, photos, content, etc.), Advertiser agrees to provide to PatientPoint in a timely fashion. Any delay in providing these assets to PatientPoint will delay the fulfillment timeframe. Any delay in Advertiser’s delivery of required assets will not delay the monthly billing.
5. Confidentiality. 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 its own Confidential Information, but not less than a reasonable degree of care. The Receiving Party shall use the Confidential Information only as provided in this Agreement and shall not disclose, transfer, publish or otherwise make the 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 and have been directed to treat the Confidential Information as confidential in accordance with this Agreement or except as otherwise provided herein. The Receiving Party shall immediately notify the Disclosing Party if any Confidential Information has been lost, stolen or inadvertently disclosed. The restrictions contained in this Agreement will not apply to any information which (i) was known to the Receiving Party prior to tits receipt 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 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 this section, the non-breaching Party, in addition to any other rights or remedies available, will be entitled to seek injunctive relief against the breaching party without the necessity of posting a bond or other security.
6. LIMITED WARRANTY. PATIENTPOINT MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY WITH RESPECT TO ALL 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, AND PATIENTPOINT HEREBY DISCLAIMS THE SAME. ADVERTISER IS SOLELY RESPONSIBLE FOR ANY AND ALL ACTS OR OMISSIONS TAKEN OR MADE IN RELIANCE ON THE SERVICES AND ASSOCIATED SOFTWARE PLATFORMS OR THE INFORMATION IN TABLETS OR SCREENS AND ASSOCIATED SOFTWARE PLATFORMS, INCLUDING INACCURATE OR INCOMPLETE INFORMATION. Advertiser warrants that it has, or will have before any content is displayed on any screens or platforms covered by this Agreement, the rights or secured the rights and permissions to display such content through the screens and/or platforms in and to physician offices.
7. Indemnification. Advertiser agrees to indemnify and hold harmless PatientPoint and its officers, directors, employees, parents, partners, successors, agents, distribution partners, affiliates, subsidiaries, and their related companies from and against any and all losses, claims, suits, damages, fines, penalties, bodily injuries (including death), judgments, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with: (i) Advertiser’s content or use of the Services; (ii) any actual or alleged violation or breach of any term of this Agreement; or (iii) violation of an applicable state or federal law.
8. Limitation on Liability. In no event will PatientPoint’s liability in connection with the Services, the hardware, the associated software or this Agreement, whether caused by failure to deliver, nonperformance, defects, or otherwise, exceed the aggregate amounts paid by Advertiser to PatientPoint hereunder during the twelve (12) month period immediately preceding the event giving rise to such liability or $1,000, whichever is greater, other than as otherwise provided for in this Agreement. IN NO EVENT SHALL PATIENTPOINT BE LIABLE IN ANY WAY TO ADVERTISER FOR ANY LOST PROFITS OR REVENUES, LOSS OF USE, 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), other than as a result of fraud or intentional misrepresentations or omissions by PatientPoint.
9. Governing Law; Jurisdiction. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Ohio without regard to its conflicts of law rules. The parties consent to the jurisdiction and venue of the state and federal courts located in Hamilton County, Ohio for any dispute arising out of this Agreement.
10. Waivers. Any term or condition of this Agreement may be waived at any time by the Party which is entitled to the benefit thereof, but only if such waiver is evidenced in writing signed by such Party that makes specific reference to this Agreement. No failure on the part of any Party hereto to exercise, and no delay in exercising, any right, power or remedy created hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right, power or remedy by any Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy. No waiver by any Party hereto of any breach of or default in any term or condition of this Agreement shall constitute a waiver of or assent to any succeeding breach of or default in the same or any other term or condition hereof.
11. Entire Agreement. This Agreement, in conjunction with the terms and conditions stated in any Enrollment Agreement, constitutes the sole and entire agreement between the Parties with respect to the subject matter hereof and thereof, and supersedes all previous discussions, representations, agreements, and commitments with respect to the subject matter hereof.
12. Assignment. Neither Party shall assign its rights or obligations under this Agreement without the prior written consent of the other Party, except that this Agreement may be assigned by PatientPoint without the prior written approval of Provider to an affiliate of PatientPoint. Notwithstanding the foregoing, either Party may assign this Agreement to a parent company, subsidiary or affiliate, or in connection with the sale of substantially all of the assets or business to which this Agreement relates or its merger or consolidation with another company.
13. Severability. All rights and restrictions contained herein may be exercised and shall be applicable and binding only to the extent that they do not violate any applicable laws and are intended to be limited to the extent necessary to render this Agreement legal, valid and enforceable. If any term of this Agreement, or part thereof, not essential to the commercial purpose of this Agreement shall be held to be illegal, invalid or unenforceable under applicable law, it is the intention of the Parties that the remaining terms hereof, or part thereof, shall constitute their agreement with respect to the subject matter hereof, and all such remaining terms, or parts thereof, shall remain in full force and effect. To the extent legally permissible any illegal, invalid or unenforceable provision of this Agreement shall be replaced by a valid provision, which will implement the commercial purpose of the illegal, invalid or unenforceable provision.
14. Force Majeure. Neither Party will be deemed to be in default under this Agreement because of the failure to perform any obligation hereunder if such failure is caused by fire, embargo, strike, war, acts of God, or other cause beyond such Party’s reasonable control (whether or not similar to the foregoing).
15. Digital/Online Marketing Services. Advertiser has contracted with PatientPoint to provide one or more of the following programs (collectively, the “Services”), as applicable: Online Listings Management (“PatientPoint Locate”), Reputation Management (“Social Climb”), Search Engine Optimization (“PatientPoint Optimize”), Search Engine Marketing (“PatientPoint Leads”), Website Development and Maintenance (“PatientPoint Launch”), various types of Online Display (Google Display Network, Facebook, Condition and HCP targeted) or other related services.
a. Set-up: As applicable and as selected by Advertiser in the enrollment agreement, PatientPoint agrees to create, manage, develop and employ the applicable Services as provided in the Agreement, which includes PatientPoint utilization of various internet search engines, proprietary software, third-party software, third-party services and other online properties in return for the amount payable by Advertiser to PatientPoint as described in the Agreement. As reasonably requested by PatientPoint and within ten (10) business days of such request, Advertiser shall furnish PatientPoint with such information to allow PatientPoint to perform the Services. PatientPoint will not be liable in any way for services PatientPoint cannot adequately provide due to the non-provision of information requested from Advertiser. PatientPoint will continue to provide the Services at such level as can be reasonably maintained in the absence of the requested information. In this instance, no refund of any amount will be due to Advertiser for any services which could not be provided due to a failure on the part of Advertiser to provide necessary information to PatientPoint as described herein.
b. Intellectual Property: Media accounts, marketing pieces, and web properties created or provided by PatientPoint for the benefit of Advertiser under this Agreement will remain the property of Advertiser. Nothing in this Agreement grants any right, title or interest in or to (including any license under) any intellectual property rights in or relating to, the Services provided, whether expressly, by implication, estoppel or otherwise. In addition, each Party shall retain sole and exclusive ownership of all patents, copyrights, trademarks, and other intellectual property rights that it owned before entering into this Agreement. In addition, nothing contained herein will transfer ownership of any Required Content to PatientPoint.
c. Online Listing Management (PatientPoint Locate):
- As applicable, Advertiser authorizes PatientPoint to act as its agent to establish and update Advertiser’s business information in online directories and listing services on behalf of the Advertiser for the term of the Agreement. Advertiser understands and agrees that each set of name, address and phone number data (“NAP”) is considered a single location (each a “Location”) and all NAP data must be unique. The Services provided, and related fees due under the Agreement, are Location specific (i.e., the fees cover only one Location due to the requirement for unique NAP data). Advertiser will provide the following required Advertiser content to create each Advertiser Location so that PatientPoint may provide the Services: business name, categories, address, city, state, zip, phone (must be a local phone number although toll-free numbers and call tracking numbers can also be published alongside local number), and featured message (the “Required Content”). In the event that Advertiser fails to populate or provide any of the Required Content fields set forth above, PatientPoint shall have the right to populate such field(s) in its sole discretion.
- PatientPoint agrees to monitor and alert Advertiser, via dashboard access, regarding new online reviews of an established location as detected by PatientPoint on monitored websites or applications. PatientPoint may change monitored websites, applications, and/or software from time to time in its sole discretion. PatientPoint will provide Advertiser with surveys that may assist them in gathering additional online reviews from clients. PatientPoint does not represent, warrant, or guarantee that the applicable services will achieve Advertiser’s desired results or any desired or potential results that may have been discussed between the parties at the time of contracting for the Services. PatientPoint does not represent, guarantee, or warrant that it will find or communicate to Advertiser every example, or all examples, of internet content about Advertiser or any other named party. PatientPoint does not represent, guarantee, or warrant that it will be successful in effecting removal, suppression or alteration, if such service is to be performed, of any internet content about Advertiser or the named party designated as private and/or unwelcome content. PatientPoint does not represent, guarantee, or warrant that the Locate Services will result in a positive change in Advertiser’s online reviews, ranking and/or scoring.
d. Reputation Management (Social Climb):
- PatientPoint and its third party service provider Social Climb will work directly with Advertiser’s designated contact (i.e., IT staff or otherwise) to facilitate implementation of the applicable Services. Advertiser agrees to provide PatientPoint and its third party service provider access to the information required for integration into the Advertiser’s EHR/practice management software.
- As part of this solution, PatientPoint’s and its third party providers’ systems and the service teams enable the creation, claiming and optimization of the key (Google) listing for Advertiser’s designated locations and providers. These services are provided in coordination with our third party service provider and are expressly subject to the terms and conditions set forth in the Social Climb Master Services Agreement (https://socialclimb.com/master-service-agreement/) and End User License Agreement (https://socialclimb.com/end-user-license-agreement/) (collectively, the “SocialClimb Terms”), the terms of which are expressly incorporated into this Agreement. Your use of the Social Climb services constitutes your express acknowledgement and agreement to the Social Climb terms.
e. Websites (PatientPoint Launch): PatientPoint will create and host a website for the estimated total price outlined in the applicable signed contract. This includes the following: website design, custom page count agreed upon in this agreement, contact form, integration of stock content (included) or custom text and images provided by Advertiser (if requested and supplied), website hosting and ongoing security and software updates, website security certificate, monthly website changes and revisions (up to 2 hours per month) as needed or requested. During the website development and launch phase, Advertiser agrees to provide PatientPoint all requested materials to complete the project, including text, images and any other information as needed, when needed and in the format requested by PatientPoint. Advertiser agrees to review PatientPoint’s work, provide feedback and sign-off in a timely manner (within 10 business days). During the website development phase, PatientPoint will make minor updates to Advertiser template-style website, including color changes, image changes and text changes to align with Advertiser’s brand. If Advertiser does not wish to utilize the design of the website template or would prefer a more customized option, PatientPoint offers custom website services at higher cost level which will need to be custom quoted per written request and captured via amendment to the Agreement or separate written agreement. PatientPoint tests all markup and CSS in current versions of all major browsers, including those made by Apple, Microsoft and Mozilla. PatientPoint does not test websites in obsolete, non-current or abandoned browsers, such as outdated versions of Internet Explorer, Google Chrome, Safari, Firefox or Opera. PatientPoint does not guarantee visual or functional accuracy when viewed on the outdated versions of the browsers listed above. Custom web copy and photographs are not included with PatientPoint’s website. PatientPoint will supply stock copy and stock images unless Advertiser chooses to supply these items. If Advertiser chooses to supply its own copy and/or stock images, PatientPoint will assume no liability to Advertiser or any third parties for Advertiser’s use of non-PatientPoint supplied images. Images should be supplied in a digital format and text should be supplied in a format that can be viewed and edited with a word processor, such as Microsoft Word, Google Docs or Notepad. Advertiser should not submit scanned PDF or handwritten documents. Any videos Advertiser would like to include on Advertiser’s website must be uploaded to a video hosting service, such as YouTube or Vimeo, prior to sending to PatientPoint. Advertiser should supply the corresponding video link for use on the website. Images will need to be sent via email or cloud sharing solution, such as Dropbox or Google Drive. If there are a large number of images, PatientPoint requests Advertiser send them in a zip file or via a cloud-based file sharing program. PatientPoint is unable to process hard copies of images. If Advertiser needs custom images or video production, PatientPoint can provide video and photography production services at additional costs captured in a written amendment to this Agreement or subsequent separate written agreement. Website revision requests must be sent via email to email@example.com or directly to your assigned Account Manager. Additional changes beyond the monthly allocation may require a $100/hour fee. Monthly website changes and support services include the following: revisions, additions and/or deletion of text and/or images on existing pages. This does not include revisions to the website layout and design. PatientPoint retains sole discretion to determine what revisions will require an extra charge in addition to the agreed upon monthly fee. If no revisions are requested during a monthly period, unused time will not roll over to the following monthly period. As long as Advertiser is a client of PatientPoint’s website services, PatientPoint will host Advertiser’s website as part of Advertiser’s monthly fee. Upon termination of this Agreement (once completed to the full term), PatientPoint will discontinue hosting and all website services immediately at which time PatientPoint will create a hosting account, move the website to that new account and Advertiser shall assume all responsibility for hosting. PatientPoint is not able to guarantee that the functions contained in any website will always be error-free. Advertiser agrees that it will work directly with the PatientPoint assigned Account Manager, not directly with its website designer. Some of PatientPoint’s websites may come with syndicated health related content from PatientPoint or PatientPoint partners. Content provided by PatientPoint via the system (“System Content”) is for informational, educational and promotional purposes only. Health-related information is not intended to be a substitute for professional medical advice. Advertiser may not rely on System Content (including opinions) for any other purpose. In many instances, System Content, will represent the opinions and judgments of third parties and as such PatientPoint does not endorse or warrant the validity of any health-related statements included in System Content.
f. Search Engine Marketing (PatientPoint Leads): If applicable, PatientPoint will serve as Advertiser’s agent when purchasing and executing a search engine marketing or other online advertising campaign by buying advertising space directly from Google, Microsoft, Facebook or other available platforms as determined by PatientPoint in its sole discretion. Payments made to PatientPoint will include the payment for purchasing and executing these campaigns.
g. Display (all types): If applicable, PatientPoint will serve as Advertiser’s agent when purchasing and executing a display ad campaign or other online advertising campaign by buying advertising space directly from Google, Microsoft, Facebook or other available platforms as determined by PatientPoint in its sole discretion. Payments made to PatientPoint will include the payment for purchasing and executing these campaigns.
h. Video and Photography Production: To the extent Advertiser has contracted with PatientPoint to provide services related to video production or photography the following terms and conditions shall apply:
- Scheduling: PatientPoint, in partnership with the third-party vendor of its choice (PatientPoint/TPV), will use commercially reasonable efforts to schedule video shoot dates with Advertiser within ten (10) business days of receipt of a signed enrollment agreement. Video or photography shoot dates must be scheduled within 3 (three) months of Agreement date or Advertiser forfeits the agreed upon video production or photography services and no refund or discount on this or other services will be made available.
- Project Approval: PatientPoint/TPV shall provide Advertiser with an initial version of each video through an email notification and online video viewing portal where Advertiser can request revisions and, ultimately, approve the video. PatientPoint/TPV shall use commercially reasonable efforts to provide the first version of each video within ten (10) business days of the video shoot date. Within five (5) business days of receipt of the notification email detailed above, Advertiser may request revisions to the initial version of the video or may approve the video as presented. PatientPoint/TPV shall use commercially reasonable efforts to provide Advertiser with a revised video for its review within five (5) business days of Advertiser’s revision request. Within five (5) business days of receipt of the first revision, Advertiser may request one (1) additional revision. Any subsequent revision requests by Advertiser are considered as outside the scope of the Agreement will result in additional fees payable to PatientPoint/TPV. Any such fees will be negotiated between the parties at the time of the provision of such services. In the event Advertiser does not respond to PatientPoint/TPV’s request for a first or second revision within a five (5) business day period, the then current version of the video shall be deemed approved by Advertiser and no further services shall be due under the Agreement by PatientPoint/TPV as related to this video.
- Delivery of Video of Photography: Once the video, or photography, has been approved by Advertiser, PatientPoint/TPV shall make the final version available to Advertiser for download through an online portal. It is the Advertiser’s responsibility to download such files directly from the portal and Advertiser agrees that the provision of physical copies such as Compact Discs (CDs) or Digital Video Discs (DVDs) will incur additional costs payable to PatientPoint/TPV. PatientPoint agrees to work with Advertiser in the creation of an online video channel on a service such as YouTube, to upload the video and optimize such video for discovery by online search engines.
16. Advertiser Information: Advertiser acknowledges and agrees that if PatientPoint identifies any Required Content that is inaccurate or contains errors (e.g. the incorrect spelling of a city name or a wrong zip code), or non-compliance with a publisher’s formatting guidelines (e.g. use of unsupported special characters), PatientPoint may, in its sole discretion, in addition to its other available rights and remedies, modify the Required Content. Advertiser acknowledges that various Services involve the provision of Required Content to publishers for use and publication, and that such publishers may require the license grant described herein. Advertiser grants PatientPoint and its affiliates and each applicable publisher worldwide, nonexclusive, perpetual, irrevocable, royalty-free, unlimited use rights (or a subset of such rights) with respect to such Required Content, including, but not limited to, rights to publish and syndicate such Required Content.
17. Additional Services: From time to time Advertiser may request information or services beyond the contracted Services. Such services may be available from PatientPoint on an hourly fee basis. If such additional services are requested by Advertiser, and are in line with the services normally provided by PatientPoint, then such services and the related fees can be agreed upon in writing between the parties either as an addendum to this Agreement or within a separate new agreement.
18. Term: The term of this agreement is stated on the face of the applicable enrollment agreement. Required terms may differ per solution. Once the term is agreed upon and the applicable enrollment agreement is executed, the term may not be revisited until the initial term, on this agreement, has been fully executed. PatientPoint does not allow for an early cancellation of any agreement.
19. Discontinuation of Services: It is the Advertiser’s full responsibility to store the information provided by PatientPoint as of the termination of the Agreement. Upon termination, Advertiser will be responsible for hosting any Services (websites, mobile websites, etc.) beyond the contracted dates. Advertiser shall also be responsible for the set-up and maintenance of new accounts upon receipt of the information and PatientPoint will not be liable in any way for any such information after the Agreement is terminated.
20. Fees: Fees are applicable only to contracted Services selected on the applicable enrollment agreement, and all fees are due monthly. Unless prior approval was granted, all enrollment agreements must specify a credit card on file for monthly billing. Any and all set-up fees shall be invoiced immediately and will be due prior to the go-live date of any contracted solution(s).
Effective: January 2022