1. Definitions 

“Account” means a unique account that is established by QPQ for your use and access to the Services. User means an individual who is authorized by Client to use the QPQ Services on your behalf. The number of Users allotted to your account is determined by the Campaign level you select either via the QPQ website or in your Campaign Order. 

“Administrator” means Client’s employee(s) or authorized agent(s) designated as the Client contact for management and support of the Service. 

“Services” means the QPQ proprietary Client Dashboard, online resources, campaign management, materials and access provided by QPQ to Client as part of its cross-promotion exchange platform. 

“Campaign” refers to a scheduled series of events, activities and offline or online impressions which QPQ will provide as part of the Services to Cross Promo your Content with a specified number of impressions and/or within a date range. A Campaign Order refers to an order form with all Campaign details as well as associated costs. 

“Content” means the Client Content provided by Client for inclusion in a Cross Promo, Client Content may include information regarding the subject of the Cross Promo, for example a podcast, as well as all scripts, audio files and all relevant information/assets needed to conduct the Campaign. 

“Cross Promo(s)” means the promotion of a client’s Content in accordance with an agreed upon Campaign plan. 

“Cross Promo Management” means collaborative management of Client’s account if such service is identified in the specific service tier selected by Client on QPQ’s website or if applicable, in Client’s Campaign Order form. 

“Impression” means the number of times a promotional advertisement is delivered to a listener, measured based on the number of downloads or streams of an episode containing the promotional advertisement with each instance of a download or stream counting as an individual Impression.

“Campaign Order” means an ordering document executed by the parties or a web-based subscription sign up specifying the Services to be provided that is entered into between Client and QPQ including any addenda and supplements thereto. 

“QPQ Dashboard” means your personalized center to track Campaigns, Impressions and related activities. 

“Service Term” means the subscription term applicable to the Service which begins on the Start Date and ends on the End Date as detailed in the Campaign Order. If you elect to subscribe via QPQ’s website then your start date will be the next business day from your sign up and will expire in accordance with the terms of the level you have selected. 

“Beta Services” means QPQ services or functionality that may be made available to Client to try at its option at no additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description. 

2. Service Terms. 

2.1 Non-Exclusive Right to Access. Subject to these Terms we make the Services available to you via the internet during the Service Term on a non-exclusive subscription basis. Depending on the Subscription level for which you have contracted you may receive free or for charge Services as identified in your Campaign Order or per your website sign up. The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. QPQ’s direct competitors are prohibited from accessing the Services, except with QPQ’s prior written consent in each instance. 

2.2 Account Creation; Access. Following execution of the Campaign Order or following online sign up, QPQ may establish an Account. The Client Administrator shall be responsible for administering the Account, including the assignment and maintenance of usernames and passwords. Client (i) remains responsible for any access to the Service through the Account, (ii) is obligated to protect and not to disclose to third parties the usernames and passwords or any other form of access credentials linked to its Account, and (iii) shall take reasonable steps to ensure that each User abides by the terms and conditions herein. If Client becomes aware of any suspected or actual violation of the Service or abuse, unauthorized use or access, Service vulnerability, security incident, confidentiality or privacy breach or potential or confirmed compromise of its access credentials, then Client shall promptly notify QPQ. 

2.3 Service Availability. QPQ shall use commercially reasonable efforts to make the Service available to Client. Nothing contained herein shall limit QPQ’s right to grant access or otherwise make available the Service, in whole or in part, to any third party. QPQ shall provide technical support to two (2) Administrators responsible for Client-side support and the coordination of technical requests for the use of the Service. Changes related to Client’s Administrators may be notified to QPQ in writing. Client will be solely responsible for providing all support to Users. 

2.4 Limited Free/Trial Use. Notwithstanding anything in these Service Terms, if you are participating in free of charge, sandbox, proof of concept, trial, use (“Non-Production Use”) of the QPQ Services as indicated in an Campaign Order or via an online website, QPQ will make the Services available to Client until the earlier of (a) the end of the limited term Trial period as indicated in the Campaign, (b) the start date of any Campaign executed by Client for paying use of Service, or (c) cessation or suspension of the Service at QPQ’s option at anytime. NOTWITHSTANDING ANYTHING IN THESE SERVICE TERMS, THE TRIAL OR FREE SERVICES ARE PROVIDED “AS-IS”, WITHOUT ANY WARRANTY OR LIABILITY PROVIDED BY QPQ. 

3. Campaigns 

3.1 Campaigns. Your Campaign Order will include details on the campaign actions and benefits you will receive. If applicable, either your QPQ Dashboard or the Campaign Order will include such Cross Promo actions you have agreed to undertake for the benefit of your QPQ Cross Promo partner as well as a timeline, dates and such other details required as part of the Cross Promo. If you are or reasonably believe you will be unable to perform any portion or all of a specific Campaign Order, or that your performance will be delayed more than 1 week, then you must notify QPQ prior to such delay or non-performance within 1 business day. At QPQ sole discretion, in the event of a delayed Campaign or non-performance of a Campaign, QPQ shall require that you either (1) perform the Campaign obligation on a mutually agreed upon time schedule or if QPQ so elects, QPQ may deduct any unfilled promos from any promos owed to you. 

3.2 Cross Promo Content. Under no circumstances shall you use the Cross Promo content other than in the performance of the Cross Promo as stipulated in your Campaign. Client shall submit all Cross Promos to QPQ for verification prior to the commencement of Campaign. After the verified Cross Promo has been approved by QPQ, Client shall not alter, modify or otherwise change the Cross Promo, or any other Promo-related feature or content, in any manner whatsoever, without obtaining QPQ’s prior express written consent in each instance. QPQ reserves the right to reject any Cross Promo content for any reason. Client shall maintain records and supporting documentation of (i) its performance of its obligations for Cross Promos under this Agreement and shall make such documentation available to QPQ within 5 business days of QPQ’s request.. 

3.3 Validation of Cross Promos. You will provide to QPQ such confirmation as set forth in the Campaign Order or as reasonably requested by QPQ in the format requested by QPQ, to allow QPQ to validate that your obligations under a Campaign Order have been performed. Such information may include information provided by your internal metrics service or a third-party service, such as, but not limited to Chartable, Podtrac, Apple Podcasts or Megaphone. Client represents that it has the right to permit QPQ to reproduce this content in your QPQ Account. Validation must be provided within 5 business days of the completion of a specific Campaign event. 

3.4 Campaign Tracking and Reporting. QPQ provides status updates on the progression of a particular Campaign within the QPQ Dashboard for your review. Within 7 business days of the completion of a Campaign, QPQ will provide a final report to you summarizing the Campaign events and outcomes. The information in your QPQ Dashboard will remain available to you for a period of 10 business days for download unless you have purchased QPQ’s historical Campaign Tracking Service, in which case it will remain available to you for the term of your Subscription. 

3.5 QPQ Referral Rewards. From time to time, QPQ may make available specific incentives for the referral of other clients to the QPQ service. If available, you may see these programs in a pop-up window while using the Service or on QPQ website in the applicable section of the menu. 

4. Payment Terms. All payments for Subscription Service Fees shall be made directly to QPQ in advance of the Subscription Term or as invoiced by QPQ for non-Subscription Fees. No payments shall be made directly to another party as a result of Campaign Order or Cross Promo. All payments due will be paid within fourteen (14) days of invoice date for an agreement executed between the parties or immediately via credit card on the QPQ website when ordering. Any usage of the Services in excess of the amounts purchased in the applicable Campaign is subject to additional Fees. Client’s non-use of the Services is not a basis for refusing to pay any Fees. All Fees are exclusive of any taxes, customs duties, and similar assessments in any jurisdiction based on gross revenue, delivery, possession, and/or use of the Services.. If the Client fails to pay any Fees due, QPQ may (i) immediately suspend the delivery of the Services until all amounts due are paid; (ii) request immediate payment or prepayment for the Services; and/or (iii) cancel, without liability to QPQ, any or all Campaign Orders. All Fees due and unpaid shall bear default interest from the invoice date at the higher rate of one and a half percent (1.5%) per month or the applicable legal rate. 

5. Warranties. 

5.1 QPQ Warranties. QPQ warrants that (i) the Service will substantially conform to QPQ’s description. In case of a breach of this warranty or any other duty related to quality, QPQ will, at its option and at no additional charge to Client, correct the non-conforming Service, and in the event QPQ is unable to correct such non-conformance after good-faith efforts, QPQ shall refund Client amounts paid attributable to the non-conforming Service from the date QPQ received such notice. Client acknowledges and agrees that this Section sets forth Client’s exclusive remedy and QPQ exclusive liability for any breach of warranty or other duty related to the quality of the Service. 

5.2 Client’s Warranties. Client warrants that: (i) it has not falsely identified itself nor provided any false information to gain access to and use of the Service and QPQ Confidential Information; (ii) the Content shall not infringe any third party’s intellectual property. Client agrees it shall indemnify, defend and hold harmless QPQ from any and all claims, liabilities, costs and expenses, including reasonable attorney fees, arising in any way from the Content provided to QPQ or QPQ’s use of the Content in the provision of the Services on Client’s behalf. 

5.3 DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN THE CAMPAIGN ORDER, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND ALL WARRANTIES, CONDITIONS, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SERVICES, WHETHER EXPRESS, IMPLIED, ARISING BY LAW, CUSTOM, PRIOR ORAL OR WRITTEN STATEMENTS BY QPQ OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO ANY WARRANTY OF CONDITION OR OF MERCHANTABILITY, INTEGRITY OF DATA, SATISFACTORY QUALITY, FITNESS FOR PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT) ARE HEREBY OVERRIDDEN, EXCLUDED, AND DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. 

6. Limitation of Liability 

NEITHER PARTY NOR ITS LICENSOR SHALL, UNDER ANY CIRCUMSTANCES, HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, RELIANCE, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF REVENUE OR PROFITS, LOST OR DAMAGED DATA, SERVICE DOWNTIME, CHANGE IN IP ADDRESS, BUSINESS INTERRUPTION, REPLACEMENT OR RECOVERY COSTS OR OTHER COMMERCIAL OR ECONOMIC LOSS, EVEN IF THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, AND WHETHER ARISING OUT OF BREACH OR FAILURE OF AN EXPRESS OR IMPLIED WARRANTY, BREACH OF CONTRACT, MISREPRESENTATION, NEGLIGENCE, STRICT LIABILITY IN TORT, OR OTHERWISE. IN NO EVENT WILL THE AGGREGATE LIABILITY OF QPQ AND LICENSORS FOR ANY AND ALL CLAIMS, ACTIONS OR PROCEEDINGS BASED ON BREACH OR REPUDIATION OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, TORT, STATUTORY DUTY, OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR A CAMPAIGN ORDER EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CLIENT FOR THE SPECIFIC PRODUCT OR SERVICE THAT DIRECTLY CAUSED THE DAMAGE IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM.

7. Confidential Information 

7.1 “Confidential Information” means all information disclosed by either party (as “Discloser”) to the other party (a “Recipient”) directly or indirectly in any form such as written, oral or visual, in machine-readable or other tangible form, relating to its business. Confidential Information includes but is not limited to patents, trade secrets, research and development plans, current and future products, product pricing, Client lists, markets, business plans, financial data, contractual terms, documentation, records, studies, reports, know-how, test results, software, and software source code. Excluded is information: (i) known to Recipient before receiving it from Discloser; (ii) independently developed by Recipient without use of or reference to any Confidential Information of Discloser; (iii) acquired by Recipient from another source not otherwise subject to confidentiality obligations; or (iv) in the public domain through no fault or action of Recipient. 

7.2 Protection of Confidential Information. Recipient shall use no less than reasonable means to prevent the disclosure and to protect the confidentiality of the Confidential Information of Discloser. Recipient shall not disclose Confidential Information to any third party, except on a need-to-know basis and for purposes of this Agreement, and under confidentiality obligations at least as restrictive as contained herein. Each party may disclose Confidential Information to its Affiliates in the administration or performance of this Agreement. While maintaining the confidentiality of Client’s Confidential Information, Client permits QPQ to gather and use Service usage data for business intelligence purposes, including for QPQ to develop new features or functionalities that will benefit users of the Services. “Affiliate” means any entity that controls, is controlled by or is under common control with a party to this Agreement, where control means, for the purposes of this definition, with respect to any entity, the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such entity, whether through the ownership of voting securities (or other ownership interest), by contract or otherwise. If Recipient is required by law to disclose Discloser’s Confidential Information or the terms of this Agreement other than as permitted under this Section, Recipient will give prompt written notice to Discloser before making the disclosure, unless prevented by the legal or administrative process, and will reasonably assist the Discloser to obtain when available an order protecting the Confidential Information from public disclosure. 

7.3 Remedies. Recipient acknowledges that any actual or threatened breach of this Section may cause irreparable, non-monetary injury to the Discloser. Accordingly, the Discloser is entitled to seek injunctive relief in addition to all remedies available at law and/or in equity, to prevent or mitigate any breaches of these Terms, or any damages that may otherwise result from those breaches. 

8. Data Collection 

8.1 QPQ may collect certain information relating to an identified or Identifiable Natural Person (defined below) such as name, business e-mail, phone number, business postal address, IP address, position and other related information (“Personal Data”) of Client’s representatives (e.g. employees and agents) when necessary to establish and/or perform a Campaign Order. Personal Data of Client’s representatives may be transferred to, processed, and stored in the United States (“US”) or other jurisdictions in the operation of QPQ or its licensor’s business and for the performance of this Agreement. An “Identifiable Natural Person” is a living individual who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person. 

8.2. Rights in Data. As between Client and QPQ, Client owns all data submitted to the Service by Client (“Data”). Client hereby grants to QPQ a nonexclusive, worldwide, sub-licensable right to use the Data to the extent necessary to perform the SaaS Service and to aggregate the Data with data from other clients and provided QPQ doesn’t specifically identify Client’s data, to use such combined data for any legal business purpose. 

9. Service Use Guidelines 

Client will not, and will not permit any of its Users or deliberately enable any other third party, to: (a) modify, copy, display, republish or create derivative works based on the Service, the underlying software or any content or reverse engineer, decompile, decrypt or attempt to discover any source code or underlying ideas or algorithms of the Service or the underlying software and components; (b) frame, scrape, link to or mirror any content forming part of the Service; (c) use the Service in connection with any illegal, defamatory, harassing, libelous, threatening, or obscene material or purpose or to send any message or material that in any way violates or infringes upon the intellectual property rights or the privacy or publicity rights of any person or entity or that may otherwise be unlawful or give rise to civil or criminal liability; (d) send or allow any malware or malicious code through the Service; (e) distribute, re-distribute, sublicense, assign, share, sell, resell, time-share, rent, lease or otherwise make the Service available to any third party (except as expressly contemplated in this Agreement), or grant a security interest in the Service; (f) interfere or attempt to interfere in any manner with the functionality or proper working of the Service, or disrupt the integrity or performance of the Service or any data contained therein; (g) circumvent any contractual, technical or logical use, Client or User restrictions agreed upon or existing in the Service or attempt to gain unauthorized access to, or use of, any part of the Service (h) perform any form of stress, load, performance, security or other vulnerability or penetration tests on the Service, or (i) provide any Client content for promotion or advertising that is illegal defamatory, libelous, or obscene or violative of the law. 

10. Ownership and Suggestions 

10.1 Ownership. All trademarks and service marks (registered or not), patents, copyrights, trade secrets, and all other intellectual property and proprietary rights in and to the Services including in any copy, translation, localization, adaptation, improvement, development, or derivative thereof (“Intellectual Property”), are and will remain the exclusive property of QPQ or its licensors, whether or not specifically recognized or perfected under applicable law. Other than as expressly granted herein, Client shall not acquire any rights to or take any action prejudicial to QPQ’s Intellectual Property rights. Client waives and will not exercise any rights it may have in the Intellectual Property and shall cause its employees and contractors to do the same. To the extent such waiver is invalid under the law, Client grants to QPQ and licensors the exclusive, perpetual, irrevocable, worldwide and royalty free right to use, market, and modify any such items without any obligation of attribution or consent, and shall cause its employees and contractors to do the same. 

10.2 Trademarks. Client may not use the QPQ trademarks without QPQ's prior written consent. Client shall not alter or remove any QPQ trademarks applied to the Products and/or Services. Client shall not challenge or assist others to challenge the QPQ trademarks or the registration thereof or attempt to register any trademarks, service marks or trade names confusingly similar to those of QPQ, its affiliates or its licensors. Any authorized use by Client of the QPQ trademarks shall inure to the benefit of QPQ. 

10.3 Suggestions. To the extent Client provides or otherwise communicates any suggestions, enhancement requests, recommendations or otherwise provides feedback on the Services (collectively, “Suggestions”), Client hereby grants QPQ a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual, unrestricted license to use and/or incorporate the Suggestions and all underlying ideas contained in the comments into the Service (or other product offerings) and create any derivative works thereof. 

11. Term and Termination 

11.1 Term. The Agreement is effective on the Order Effective Date if executed in writing between the parties and, if online, when Client completes the registration process and continues until it expires or is terminated as indicated herein. Unless otherwise indicated in an applicable Campaign Order the Agreement continues until the term or subscription of all Services ordered under the applicable Campaign Order expire or until all Campaign Orders otherwise terminate as set forth herein (the “Term”). 

11.2 Automatic Renewal. The Services will automatically renew for the same Subscription Term that Client has previously subscribed (the “Renewal Term”) unless either party cancels the upcoming Subscription Renewal Term by providing written notice at least thirty (30) days prior to the Subscription end date. Unless otherwise indicated in the Campaign Order (i) the terms and conditions applicable to Renewal Term(s) are the most recently published terms and conditions, and (ii) QPQ reserves the right to increase the Service Subscription Fee for any subsequent Renewal Term, but in no case will the increase be less than three percent (3%). 

11.3 Termination. Without prejudice to any of the parties’ rights and obligations, either party may terminate the Agreement or any then current Campaign Order by written notice to the other party (i) if the other party is dissolved, declared bankrupt, granted suspension of payments, moratorium, has a receiver, administrator or manager appointed over the whole or part of its assets or business, (ii) for material breach of this Agreement and such breach is incapable of cure; or being capable of cure, remains uncured for thirty (30) days after the breaching party receives detailed written notice thereof. 

11.4. Effect of Expiration or Termination. Upon the expiration or termination of this Agreement or Campaign Order for any reason, all rights granted to Client will cease. Termination of any Agreement or Campaign Order does not relieve payment obligations due prior to termination, for any current Term or future committed Term, and does not give Client any right to any reimbursement, refund, or credit. The terms, conditions and warranties contained in the Agreement which by their nature and context are intended to survive the performance hereof shall so survive the expiration or termination of the Contract.

12. Force Majeure. If QPQ is prevented or delayed in the performance of any obligation in this Agreement or a Campaign Order by any event beyond its reasonable control (including, but not limited to, strikes, accidents, fires, explosions, earthquakes, pandemic, the inability to procure materials from the usual sources of supply, or act, requisition, or order of any governmental authority restricting or prohibiting the supply of the Services or making such supply commercially unreasonable), QPQ shall be excused from performance or punctual performance for so long as the cause of prevention or delay continues. 

13. Governing Law. This Agreement will be governed by and construed in accordance with the substantive laws of the Commonwealth of Massachusetts without regard to conflict of laws and all disputes arising under or relating to this Agreement shall be brought and resolved solely and exclusively in the State Court located in the Commonwealth of Massachusetts. 

14. Miscellaneous 

14.1 The Agreement together with the Campaign Order(s) if applicable, constitutes the entire agreement between the parties with respect to the subject matter therein and supersedes any prior proposal, representation, or written agreement, except if specifically agreed otherwise. Any modification or waiver of any provision of the Agreement is binding only if made in writing signed by both parties. Other than as expressly stated that it supersedes a specifically identified section of the Agreement, any inconsistency in any documents relating to the Agreement shall be resolved by giving precedence in the following order: (i) the Service Terms; (ii) and the applicable Campaign Order. Except as otherwise stated in the applicable Campaign Order, all notices or approvals must be given in writing to QPQ at the address indicated on the Website. Notwithstanding the foregoing, QPQ may give Client notice electronically. Electronic notice to Client is deemed given when transmitted to an email address furnished by Client to QPQ. 

14.2 Client may not assign or transfer its rights or duties in whole or in part to a third party without written consent of QPQ. 

14.3 If a court declares any provision of this Agreement as unlawful, void, or for any reason unenforceable, such declaration shall not affect the validity or enforceability of the remaining provisions. 

14.4 Client’s purchase orders, online procurement and invoicing portals are for Client’s convenience only and do not add to, alter, or otherwise amend this Agreement. 

14.5 If an executable form of this Agreement or a Campaign Order is deployed, it may be executed by means of electronic signature, or in any number of counterparts, where all such counterparts taken together will be deemed to constitute one and the same instrument. A signed or e-signed copy of this Agreement or a Campaign Order Form delivered by email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed Contract.