Terms and Conditions

The following are the Terms and Conditions (the "T's and C's"), that together with the Insertion Order to which they are attached (the "IO"), govern all advertising campaigns ("Campaigns") that are run by you and your subsidiaries (the "Company"), on behalf of QH Acquisition Sub LLC ("QH") and QH's advertising client identified on page 1 of the IO, if any (the "Advertiser"). These T's and C's will govern all existing and subsequent IOs entered into by the parties (collectively, the "Agreement"). The Agreement supersedes and replaces any and all prior agreements entered into by and between the Company and QH. Capitalized terms not defined in these T's and C's shall have the meanings set forth in the IO. Company provides a wide array of online advertising services (collectively the "Services") including, without limitation: (a) placement of advertising on its proprietary websites and those of its Company Affiliates (collectively, "Company Websites"); (b) the use of affiliates ("Company Affiliates") and their associated marketing initiatives; (c) e-mail marketing to the databases owned and/or operated by Company and/or its Company Affiliates ("Company Databases"); and (d) search engine marketing services. The IO will indicate which of the Services are being provided by Company and the Company Affiliates, as applicable, subject to these T's and C's. For purposes of the Agreement, any reference to Company shall include any and all Company Affiliates. Company shall remain, at all times, fully liable for any and all acts and/or omissions of its Company Affiliates, and for ensuring that each such Company Affiliate complies with any and all obligations, restrictions and other terms applicable to Company hereunder.

  1. 1.Campaign Offerings

    Definitions: "Affirmative Consent" shall mean affirmative consent, as defined in the CAN-SPAM Act of 2003, as amended ("CAN-SPAM"), to receive commercial e-mail from QH and the applicable Advertiser(s).

    "CPA Campaign" is a Campaign where Company sends a visitor to an online form, survey, question or web page hosted by QH or the applicable Advertiser where requested Lead data is collected.

    "Consent" shall mean Affirmative Consent and Prior Express Written Consent, as applicable.

    "Co-Registration Campaign" is a Campaign where Company collects requested Lead data on an online form, survey, question or web page hosted by Company or its Company Affiliate.

    "Creative" shall mean the images, graphics, links, copy or other creative material used by Company in connection with its Lead generating Services hereunder.

    "Lead" refers to the underlying user action data generated for a CPA or Co-Registration Campaign, as specified in the IO, which is either collected directly by QH or the applicable Advertiser, or processed by Company's proprietary lead processing system and sent to QH in the agreed upon format.

    "Prior Express Written Consent" shall mean "prior express written consent" as set forth under the Telephone Consumer Protection Act (47 USC § 227), and its implementing regulations adopted by the Federal Communications Commission (47 CFR § 64.1200), as amended from time-to-time (the "TCPA"), to receive commercial telephone calls (including artificial voice calls, pre-recorded calls and/or autodialed calls) from QH and the applicable Advertiser(s). Company shall retain records of each individual's Prior Express Written Consent ("Consent Records") for a minimum of seven (7) years following creation of same, and shall provide such records to QH within two (2) business days' of request at any time. The Consent Records shall include, at a minimum, the Consent Language (as defined below), the IP address of the source of the Lead data and the date and time stamp indicating the time that the Lead data was collected.

    Tracking/Lead Count: QH shall have sole and absolute responsibility for calculation of Leads that comply with the terms of the Agreement. Payment will be made based on QH's counts, less any Leads returned in accordance with any return provisions set forth herein or on the IO. Advertiser will provide Company with online access to Lead stats sorted by unique affiliate identification number or, if online stats are not available, Advertiser shall issue reports to Company weekly on Tuesdays for Leads generated up until the previous day. Company shall transfer the Leads in the format agreed upon and tested by the parties. QH agrees to review the Leads and verify receipt within seventy-two (72) hours of delivery by Company.

    Count Discrepancies: In the event that QH disputes the number of Leads claimed to be delivered by Company and/or QH asserts that the Leads are Non-Viable Leads (as defined below), it shall provide Company with notice of same and return all Non-Viable Leads within ten (10) days after the end of the month in which such Non-Viable Leads were generated, which shall be accompanied by a detailed explanation of the rationale for the rejection of such Non-Viable Leads, consistent with these T's and C's. Company shall, in good faith, consider such documentation. If Company deems the Leads to be valid, the parties shall work together in good faith to resolve the discrepancy. Where the parties cannot agree, QH's good faith determination shall control in all respects.

    Non-Viable Leads: For purposes of the Agreement, a Non-Viable Lead shall mean a Lead submitted by Company that does not contain valid and complete information submitted by an individual and/or is either a Duplicate Lead, Invalid Lead, Rejected Lead or Fraudulent Lead (as those terms are defined below). For purposes of the Agreement, a "Duplicate Lead" means a Lead submitted by Company to QH or the applicable Advertiser that reproduces all or substantially all of the uniquely identifying data of an individual whose information was: (a) previously submitted to QH by Company and for which QH has paid, or accrued an obligation to pay, Company; and/or (b) already in the applicable Advertisers' possession. For purposes of the Agreement, an "Invalid Lead" means a Lead submitted by Company to QH or the applicable Advertiser that: (i) does not contain all of the information required as set forth on the applicable IO; and/or (ii) does not include the Affirmative Consent or Prior Express Written Consent of the underlying consumer, as applicable. For purposes of the Agreement, a "Rejected Lead" means a Lead submitted by Company to QH or the applicable Advertiser that the applicable Advertiser rejects, refuses to furnish payment for and/or demands a refund for. For purposes of the Agreement, a "Fraudulent Lead" means a Lead submitted by Company to QH or the applicable Advertiser that is the product of incentivized marketing, fraud or manipulation of information on the part of Company or any of its affiliates.

  2. 2. Creative.

    (a) QH Creative. QH shall provide Company with all marketing materials to be used in connection with generating Leads hereunder ("QH Creative") including, without limitation, the consent and/or opt-in language to be included in the online media from which the applicable Lead data will be collected ("Consent Language"). Without limiting the foregoing, QH shall have sole discretion with respect to the creation of the "subject" and "from" lines used in connection with any e-mail sent hereunder. No other images, graphics, links, copy or process for generating Leads may be used by Company without first obtaining the prior express written permission of QH in each instance. Company will not edit, modify, deviate from or otherwise make any changes to the QH Creative in any way without QH's prior written approval. The parties understand and agree that QH is the sole owner of any and all intellectual property rights associated with the QH Creative. For the term of the Agreement only, QH grants to Company a limited, revocable, non-transferable, non-exclusive, royalty-free license to use the QH Creative solely and exclusively as necessary to perform its services hereunder.

    (b) Company Creative. Subject to the restrictions set forth herein, and where QH permits same in the IO, Company may use its own marketing materials in connection with generating Leads hereunder ("Company Creative," and together with the QH Creative, the "Creative"). Company shall be fully responsible for all aspects of the Company Creative. All Company Creative, and/or any modifications thereto, must be approved by QH in writing prior to being utilized in connection with any Campaign and must comply with the terms of the Agreement. QH may reject any Company Creative with or without cause, even after such Company Creative was previously approved by QH. In the event that QH desires to cancel the use of any Company Creative, Company shall cease the distribution and use of same to, and/or in connection with, the Company Databases and Company Websites no more than forty-eight (48) hours following QH's written request. If Company and/or any Company Affiliate violate(s) this Section 2, Company shall forfeit all revenue associated with the Leads generated by such means.

  3. 3. Marketing Restrictions.

    (a) Company may not engage in any marketing and/or Lead generation via SMS, Smart Messaging, EMS, MMS or any other type of text messaging service or protocol.

    (b) Company shall not use ANY "incentivized marketing" or establish, or cause to be established, any promotion that provides any sweepstakes entries, rewards, points or other compensation to be earned in connection with generating Leads, nor create the appearance of incentivized marketing or otherwise attempt to induce prospective Leads to provide Lead-related information through use of any other incentives.

    (c) Company may not, nor knowingly permit any person to, inflate the amount of Leads through any deceptive or misleading practice, method or technology including, but not limited to, the use of any spyware, adware, device, program, robot, iFrames, redirects, spiders, computer script or other automated, artificial or fraudulent methods designed to appear like an individual, real live person completing a Lead registration form. Company may not: (i) place any statement in close proximity to the Creative requesting that e-mail recipients or end-users "click" on or fill-out the applicable Lead registration form (e.g., "Please click here"); (ii) place misleading statements in close proximity to the Creative; (iii) take control of an end-user's computer by delivering advertisements that the end-user cannot close without turning off the computer or closing all sessions of the Internet browser for the computer; (iv) install or execute on another's computer one or more additional software program(s) without consent of the end-user (in addition, Company must clearly provide instructions to disable the software, such that the software is easily identifiable and the removal can be performed without undue effort or knowledge by the end-user); and/or (v) distribute spyware or other similar harmful software.

    (d) Without limiting any of the marketing restrictions contained herein, without receiving QH's prior written approval in each instance, Company may not: (i) include or promote any Creative by and through any blogs, news articles, third party newsgroups, message boards or other social media outlets; or (ii) use any endorsements or testimonials in connection with marketing the Creative.

    (e) Unless authorized in writing, in advance, Company may not use third-party trademarks or any other term excluded in any applicable IO, in any manner to direct traffic to any Company Websites. This prohibition includes, but is not limited to, purchasing keywords from search engine service providers ("Paid Search Networks"), or purchasing inclusion in search engine networks ("Paid Inclusion Networks"), where the associated keywords include the trademark, service mark and/or brand name of any third party including, without limitation, any Advertiser, or any derivative or misspelling of any such trademark, service mark or brand name. Company must provide all text and proposed keywords/phrases that it would like to bid on ("Keyword Text") to QH for approval or editing, prior to submitting same to any Paid Search Network or Paid Inclusion Network. Without limiting the foregoing, Company must not violate the rules, requirements or regulations of any Paid Search Network or Paid Inclusion Network, and Company shall fully indemnify and hold harmless QH from and against any and all liability arising in connection with such a violation.

    (f) Company will not use inappropriate content on, or in connection with, the Creative, Company Websites and/or e-mail messages sent to prospective Leads including, without limitation, content that promotes or contains language referring to: (i) the use of alcohol, tobacco or illegal substances, nudity, sexually explicit material, pornography, profanity, adult-oriented content, expletives or inappropriate language; (ii) illegal or unethical activity, deceptive acts, racism, hate, material that promotes violence, "spam," mail fraud, gambling, pyramid schemes, investment opportunities or illegal advice; (iii) libelous, defamatory, infringing, false or misleading content, or other content that is contrary to public policy; (iv) content that may expose QH and/or its Advertisers to negative publicity; (v) piracy (of software, videos, audio/music, books, video games, etc.) hacking/cracking/phreaking, emulators/ROMs, or distribution of copyrighted materials; (vi) content that violates the rights of others, such as intellectual property or privacy rights; (vii) activities generally understood as Internet abuse including, but not limited to, the sending of unsolicited bulk electronic mail; or (viii) content that is otherwise offensive or inappropriate to QH or any Advertiser in their respective sole discretion.

  4. 4. Email Campaigns.

    The sending of unsolicited commercial email by Company is absolutely prohibited in connection with the Campaigns. If QH or the applicable Advertiser elects to have the Creative delivered through e-mail, as indicated on the IO, Company may distribute such promotional material through the Company Databases. All email campaigns must be conducted by Company in compliance with the Agreement and Advertiser's Requirements for Campaigns Receiving Email Traffic, which is incorporated herein by reference (the "Requirements"). Without limiting the terms set forth in the Requirements, Company will, and Company will ensure that any third party sending emails on behalf of Company will, comply with all requirements of the CAN SPAM Act of 2003, as amended ("CAN-SPAM"), any successor legislation, state e-mail, deceptive marketing and privacy laws including, but not limited to, the Michigan Children's Protection Registry (https://www.protectmichild.com/senders/) and the Utah Child Protection Registry (https://www.registrycompliance.com/apply.html), and any and all other state and federal laws, rules and regulations governing email marketing and/or communications (collectively, "E-mail Law"). Any costs and/or fees charged to Company by its Internet Service Provider related to responding to and/or managing allegations of "spam" or any other unauthorized usage complaints received from prospective Leads and/or Leads, regulatory agencies or otherwise shall be borne exclusively by Company. Company shall: (a) make adequate disclosures as required by law to those in the Company Databases regarding its e-mail and privacy and security policies; (b) respond to all complaints within three (3) business days after Company becomes aware of the complaint; and (c) provide QH with a copy of every complaint within three (3) days of Company's receipt thereof. Company is solely responsible for all consumer complaints in connection with e-mail campaigns it conducts. Company further represents and warrants that the e-mail addresses in the Company Databases were originally compiled with the applicable consumers' Affirmative Consent, and that all recipients have in fact opted-in to the applicable Company Databases. Company must, upon the request of QH, supply the name, date, time and IP address where the consumer signed-up and/or gave Affirmative Consent to Company. Company represents and warrants that it shall:(i) not falsify e-mail header or transmission information (including, without limitation, source, destination and routing information); (ii) not use brand names and/or trademarks of another party in the subject or from lines or body of any commercial e-mail transmission; (iii) not seek or obtain unauthorized access to computers for the purpose of sending any commercial e-mail; (iv) include within all commercial e-mail sent, Company's correct point-of-origin e-mail address, transmission information and routing information; (v) include within all commercial e-mail sent, clear, prominent opt-out instructions in the e-mail and in the first line of the text, if required by E-mail Law; (vi) include within all commercial e-mail sent, a toll-free telephone number or valid e-mail address at which recipient may contact Company to file complaints and/or opt-out; (vii) include within the footer of all commercial e-mail, links to Company's privacy policy; (viii) include the applicable e-mail list/Company Database name within the header of all commercial e-mail sent; (ix) ensure that all commercial e-mail sent contains a functioning IP address that must be valid and under the ownership and/or control of the Company; and (x) include within all commercial e-mail sent, a functioning unsubscribe link which, when activated by user, actually and permanently removes the user's e-mail address from the applicable Company Database. Company may not send Campaign e-mail to any e-mail address in the Company Databases: (A) more than two (2) times per month; and/or (B) that does not have e-mail activity, either clicks and/or opens, in the last six (6) months prior to the prospective send date.

  5. 5. Canada's Anti-Spam Legislation.

    Company represents and warrants that either: (a)the Company Databases do not contain the e-mail address(es) of any resident(s) of Canada ("Canadian E-mail Addresses"); or (b) if the Company Databases contain Canadian E-mail Addresses, then Company further represents and warrants that: (i) it will notify QH of same; (ii) the Company Databases were collected, stored, maintained and utilized in full compliance with Canada's Anti-Spam Legislation ("CASL"); (iii) the individual associated with each Canadian E-mail Address has provided the requisite consent to receive Commercial E-Mail Messages (as defined under CASL) from Company as contemplated by the campaigns undertaken on behalf of QH; and (v) any and all e-mail Company Creative shall include a simple, clear and cost-free CASL-compliant mechanism that identifies Company's full name and QH and allows consumers to revoke their consent to receive, and unsubscribe from the receipt of, future Commercial Email Messages from Company and/or QH, as applicable. Company will defend, indemnify and hold harmless QH and its directors, officers, employees, shareholders, members, agents, successors and assigns, from and against any and all claims, liabilities, costs, losses, damages and expenses, including reasonable attorneys' fees and the costs of indemnifying third parties, arising from or related to any third party claim or governmental action related to or arising out of any allegation that, if true, would constitute a breach of a representation, warranty, covenant or obligation contained in this Section 5.

  6. 6. Suppression Lists.

    With respect to any suppression list generated by Company hereunder, or provided to Company by QH (collectively, the "Suppression List"), Company shall: (a) use such Suppression List, and the individual customer records contained therein, solely for the suppression purposes set forth herein, even after any termination or expiration of the Agreement; (b) regularly use such Suppression List to remove any and all e-mail addresses contained therein from the receipt of future commercial e-mail messages; (c) not retain a copy of any Suppression List following termination of the Agreement; (d) not use any Suppression List for purposes of e-mail appending in any manner whatsoever; (e) hold any Suppression List made available by QH in trust and confidence; and (f) not disclose any Suppression List made available by QH to any employee, consultant, subcontractor or third party individual, corporation or entity without first ensuring said party's written agreement to be bound by the terms of the Agreement. Company further agrees and acknowledges that: (i) it has downloaded and removed the domains located on the Federal Communications Commission's ("FCC's") wireless domain names list (http://www.fcc.gov/cgb/policy/DomainNameDownload.html) from any and all current data used in mailings hereunder; and (ii) any and all new data that it acquires, regardless of its source, will be scrubbed against the FCC's wireless domain names list and that the domain names contained therein will be removed before sending any mailings hereunder. Company shall provide QH with a copy of the Company-generated Suppression List at least once per week. If no such e-mail addresses are supplied by Company, QH may conclude that no such addresses exist.

  7. 7. Call Center Marketing.

    Where permitted under the applicable IO, Company may operate a call center ("Call Center"), located in the United States ONLY, in order to generate Leads hereunder via telemarketing ("Telemarketing Services"). Company shall be responsible for all aspects of the operation of the Call Center and Telemarketing Services. Company shall set its own training standards and do its own training for its personnel, provided that such training and training standards will be sufficient to ensure the professional and first-class operation of the Call Center, in accordance with industry standards. In connection with the Telemarketing Services provided hereunder, Company represents and warrants that: (a) the Company Databases were collected, compiled and maintained in compliance with, and the Telemarketing Services will at all times fully comply with, all applicable state and federal laws, statutes, rules and/or regulations including, but not limited to, the TCPA, the Amended Telemarketing Sale Rule ("ATSR"), 16 CFR 310 et seq., and those governing the National Do Not Call Registry ("NDNCR") (collectively, "Telemarketing Laws"); (b) it will obtain and/or maintain, at its sole cost and expense, all permits, licenses and other consents necessary to perform the Telemarketing Services provided under the Agreement including, where appropriate, telemarketing registration and bonding in applicable United States jurisdictions; (c) if applicable, it has the legal authority to download information from the NDNCR using a Subscription Authorization Number ("SAN"); (d) in accordance with applicable Telemarketing Laws, Company shall maintain a DNC Suppression List. Company agrees that it will transmit the DNC Suppression List data that it receives to QH as requested and will scrub the Leads against all applicable DNC Suppression Lists immediately prior to commencing any and all Telemarketing Services, and on a daily basis during its performance under the Agreement; (e) it shall employ only qualified personnel, including only those individual telemarketers that have not been previously precluded from performing Telemarketing Services by a United States regulatory agency; (f) it shall be responsible for the supervision, management and control of such telemarketing personnel; (g) it shall maintain audio recordings of all calls made, and received, by Company hereunder for a period of five (5) years from the date of each respective call ("Recordings"); and (h) Company shall make such Recordings available to QH promptly upon QH's reasonable written request.

  8. 8. Terms of Payment.

    Upon reconciliation of Lead counts, Advertiser will pay Company within thirty (30) days from the end of each calendar month during which the Campaign was active for all Leads, other than Non-Viable Leads, generated in that month. QH will not pay for Leads in connection with any invoice that is submitted more than ninety (90) days after the end of the calendar month during which the first Lead included on such invoice was generated..

  9. 9. Representations and Warranties.

    Each party represents and warrants that: (a) it has the right to enter into and fully perform the services contemplated in each IO, consistent with these T's and C's; (b) as of the date that each IO is signed by each party, there is no outstanding contract, commitment or agreement to which it is a party that conflicts with these T's and C's and/or the IO; and (c) at all times while any IO remains in effect, it shall comply with all applicable state and federal laws, rules, Federal Trade Commission and Federal Communications Commission implementing rules and regulations including, but not limited to, the Gramm-Leach Bliley Act, the Fair Credit Reporting Act, the Federal Trade Commission Act, the E-Mail Laws, Telemarketing Laws, and all rules and regulations promulgated under any of the foregoing (collectively, "Applicable Law"). Company further represents, warrants and covenants that: (i) it, as well as its Services (including the Telemarketing Services), Company Creative, Call Center, Company Websites and Company Databases will comply with all Applicable Law; (ii) the Leads supplied to QH consist of records of persons who have supplied the requisite Consent; (iii) any and all Company Websites shall, at all times during the term of the Agreement, maintain a privacy policy ("Company Privacy Policy") that complies with all Applicable Law; (iv) the Company Privacy Policy shall explain that each such Company Website is allowed to share any information collected therethrough with third parties, such as QH and its Advertisers: (A) for the marketing purposes contemplated hereunder; (B) for general reporting purposes, including the compilation of statistics, such as the total number of ads delivered, that may be provided to existing and potential customers; (C) for scheduling and optimization of delivery of Creative across all Campaigns, including via websites, networks, e-mail and any and all other advertising inventory; (D) if required by court order, law or governmental agency; and (E) in such other ways as the parties may agree in writing; and (v) the Leads will be obtained, collected and compiled with the applicable end-user's Consent and without employing harvesting, dictionary attacks and/or any other deceptive or illegal act or practice..

  10. 10. Limitation of Liability.


  11. 11. Disclaimer of Warranties.


  12. 12. Confidentiality.

    Except as otherwise provided herein, Company and QH each acknowledge and agree that all information, data, materials, or technology communicated to either the Company or QH and marked as "Confidential" or "Proprietary" or that which should reasonably be considered confidential under the circumstances of its disclosure by the other party hereunder ("Confidential Information") was and shall be received in confidence, shall be used only for purposes of the Agreement and that no such Confidential Information shall be disclosed by the receiving party, its agents or employees without the prior written consent of the disclosing party, except as may be necessary by reason of legal, accounting or regulatory requirements including requirements of independent auditors and bank examiners applicable to such party and its business. Without limiting the foregoing, QH's Confidential Information includes, but is not limited to: (a) the publishers and Advertisers comprising the QualityHealth Network; (b) media rates negotiated by QH and its Advertisers; (c) information concerning QH's proprietary technology and its technology providers; and (d) the QH media planning and buying methodologies. Except to the extent otherwise required by applicable law, the parties' obligations under this Section 12 do not apply to information that: (i) is or becomes publicly known, through no fault of the receiving party; (ii) the receiving party can demonstrate was known by the receiving party prior to disclosure hereunder; (iii) the receiving party can demonstrate is disclosed to the receiving party by a third-party with no violation of confidentiality to the disclosing party; or (iv) the receiving party can demonstrate is developed by the receiving party independent of any use of information disclosed by the disclosing party. At the request of the disclosing party, the receiving party shall return all of the disclosing party's Confidential Information to the disclosing party.

  13. 13. Audit.

    Company agrees that at all times during the term of the Agreement it shall maintain accurate books and records relating to its generation of Leads hereunder. Company agrees that QH, or any designee of QH that is legally bound to obligations of confidentiality and non-disclosure, shall have the right during the term of the Agreement, and for three (3) months thereafter, to reasonably examine, inspect, audit and review all such books, records and any source documents used in the preparation thereof during normal business hours upon written notice to Company at least seven (7) business days prior to the commencement of any such examination, inspection, review or audit. Such audit shall be at QH's sole cost and expense and shall be strictly limited to those books and records that specifically relate to Company's generation of Leads, as well as Company's compliance with Applicable Law and the terms of the Agreement in connection therewith. Notwithstanding the foregoing, if QH uncovers any material misconduct associated with Company's generation of Leads hereunder, then the audit shall be at the sole cost and expense of Company.

  14. 14. Non-Circumvention.

    Company recognizes that QH has proprietary relationships with its Advertisers. Company agrees not to circumvent QH's relationship with such Advertisers, or otherwise offer, make available, provide, contract for or otherwise perform, directly or indirectly, advertising, marketing or promotional services similar to the services performed by Company hereunder for any Advertiser that is known, or should reasonably be known, by Company to have such a relationship with QH, during the term of the Agreement and for twelve (12) months following termination or expiration of the Agreement. Notwithstanding the foregoing, to the extent that Company can show that any such Advertiser already obtained such services from Company prior to the Effective Date of the Agreement, then Company shall not be prohibited from continuing such relationship. Company agrees that monetary damages for its breach, or threatened breach, of this Section 14 will not be adequate and that QH shall be entitled to: (a) injunctive relief (including temporary and preliminary relief) without the requirement to post a bond; (b) liquidated damages from Company in the amount equal to one hundred percent (100%) of the fees received by Company from the subject Advertiser; and/or (c) any and all other remedies available to QH at law or in equity.

  15. 15. Intellectual Property Ownership.

    Subject to the limited licenses granted hereunder, each party shall own and shall retain all right, title and interest in and to its trade names, logos, trademarks, service marks, trade dress, Internet domain names, copyrights, patents, trade secrets, know-how and proprietary technology, including, those trade names, logos, trademarks, service marks, trade dress, copyrights, patents, testimonials, endorsements, know how, trade secrets and proprietary technology currently used or which may be developed and/or used by it in the future ("Intellectual Property"). Except as provided in the Agreement, neither party may distribute, sell, reproduce, publish, display, perform, prepare derivative works or otherwise use any of the Intellectual Property of the other party without the express prior written consent of such party.

  16. 16. Indemnification.

    Company shall indemnify, defend and hold harmless QH, its Advertisers, their respective officers, directors, members, affiliates, employees, agents, representatives and assigns from and against any and all claims, suits, demands, liabilities, expenses, losses, fines, penalties, and damages (including reasonable attorney's fees) ("Losses") arising out of or resulting from: (a) any claim related to the collection of the Leads provided by Company and/or the Services (including the Telemarketing Services, if applicable); (b) any claim related to the Company Creative, Call Center, Company Databases and/or Company Website; (c) Company's breach or alleged breach of the Agreement; (d) Company's infringement upon, or violation of, any third party intellectual property right, including but not limited to any trademark, copyright or patent, any right of privacy or publicity or any other intellectual property right; (e) the act or omission of any Company Affiliate; and/or (f) a violation by Company or any third party acting on Company's behalf of any Applicable Law. QH shall hold Company, its officers, directors, affiliates, employees, agents and representatives harmless from and against any and all Losses resulting from or related to: (i) QH's material breach of the Agreement; (ii) QH's infringement upon, or violation of, any third party's intellectual property rights, including but not limited to any trademark, copyright or patent, any right of privacy or publicity; and/or (iii) QH's violation of any Applicable Law (to the extent such violation was not caused by Company's failure to obtain the applicable requisite Consent). Any party entitled to indemnification hereunder (the "Indemnitee") agrees to: (A) promptly notify the indemnifying party (the "Indemnitor") in writing of any action or claim that may give rise to an indemnification obligation hereunder and give the Indemnitor the opportunity to defend or negotiate a settlement of any such claim at the Indemnitor's expense; and (B) cooperate fully with the Indemnitor, at the Indemnitor's expense, in defending or settling such claim. The Indemnitor may, at its discretion, settle any claim; provided, however, that such settlement does not adversely affect the Indemnitee's rights hereunder or impose any obligations on the Indemnitee in order for it to exercise such rights. If the Indemnitor chooses not to assume the defense of any such claim, the Indemnitee may defend against the claim in such manner as it deems appropriate and the Indemnitee may settle the claim on such terms as it deems appropriate, and the Indemnitor shall promptly reimburse the Indemnitee for the amount of all costs incurred by the Indemnitee in connection with the defense against or settlement of such claim. Each party reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by the Indemnitor hereunder. QH shall have the right to offset any amounts owed to QH from Company under this Section 16 from any amounts to be paid to Company by QH pursuant to the Agreement or otherwise.

  17. 17. Term and Termination.

    The term during which Company shall provide the Services shall be as set forth in the IO. Either party may terminate any IO at any time: (a) immediately with written notice (with e-mail sufficing as written notice) upon a material breach of the Agreement by the other party; or (b) for any reason upon two (2) business days' prior written notice to the other party (with e-mail sufficing as written notice). If QH terminates any Campaign and/or IO, Company shall promptly send a notice to its Company Affiliates advising them of the termination and shall terminate the availability of such Campaign, as applicable, to its Company Affiliates.

  18. 18. Miscellaneous.

    In the event of any inconsistency between the IO and the T's and C's, the IO shall control. These T's and C's, together with the IO: (a) shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to principles of conflicts law; (b) may be amended only by written agreement executed by an authorized representative of each party; and (c) constitute the complete and entire expression of the agreement between the parties, and shall supersede any and all other agreements, whether written or oral, between the parties. The parties irrevocably consent to the exclusive jurisdiction of the courts of the State of New York in connection with any action arising between the parties. If any provision of the Agreement shall be held or made invalid or unenforceable by a court decision, statute, rule or otherwise, the remaining provisions of the Agreement shall not be affected thereby and shall continue in full force and effect. Any waiver (express or implied) or delay by a party of any default or breach of the Agreement by the other party shall not constitute a waiver of any other or subsequent default or breach. Neither party will be liable, or be considered to be in breach of the Agreement, on account of such party's delay or failure to perform as required under the terms of the Agreement as a result of any causes or conditions that are beyond such party's reasonable control and that such party is unable to overcome through the exercise of commercially reasonable diligence (a "Force Majeure Event"). If any such Force Majeure Event occurs including, without limitation, acts of God, fires, explosions, telecommunications, Internet or network failure, results of vandalism or computer hacking, storm or other natural occurrences, national emergencies, acts of terrorism, insurrections, riots, wars, strikes or other labor difficulties, or any act or omission of any other person or entity, the affected party will give the other party notice and will use commercially reasonable efforts to minimize the impact of any such event. The relationship of QH and Company established by the Agreement is solely that of independent contractors, and neither party is an employee, agent, partner or joint venturer of the other. Neither party shall make any representation, warranty or covenant, or assume or create any obligation, on the other party's behalf. Each party shall be solely responsible for the actions of its respective employees, agents and representatives. Neither party shall, without the prior written consent of the other party, assign its rights or delegate its duties under the Agreement, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that either party may, in the event of a merger, acquisition, joint venture, or sale of substantially all of such party's assets or business (or any substantially similar transaction), assign the Agreement without the consent of the other party. The provisions of the Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.