Master Advertising Terms

“Platform” means the Audiohook web application and any successor interface through which Customer configures, monitors and manages campaigns. “Services” means the Platform together with the advertising, measurement, creative and reporting services Audiohook makes available. “Campaign Record” means the configuration recorded by the Platform for a campaign at a given time, including spend cap, conversion type, pricing mode, rate, geographies and inventory types. “Commerce Data” has the meaning given in clause 26. “Tag” means the Audiohook conversion tracking tag and any other Audiohook measurement tool, including a web pixel, checkout extension or theme app embed installed through a Commerce Platform integration. “Policies” means the Advertising Policies and Acceptable Use Policy, the Privacy Policy, the Data Processing Addendum and any other document Audiohook identifies as a Policy and makes available at a stable URL, each as amended in accordance with clause 4.

Customer represents that it is entering into these Terms for business purposes and not as a consumer, and that it is not acting for personal, family or household purposes. Where Customer is an advertising agency or otherwise acts for another party, Customer represents that it is authorised to act for and to bind each advertiser it represents, every reference to Customer applies equally to that advertiser, and Customer and that advertiser are jointly and severally liable for all obligations under these Terms. Audiohook may require evidence of that authority at any time and may suspend the account until it is provided.

Unless a Policy, the Platform, or a written agreement referencing these Terms provides otherwise, the commercial terms applicable to a campaign are those displayed in the Platform and recorded in the Campaign Record at the time the campaign or change is submitted. Those terms include the conversion type, the pricing mode and rate, the spend cap, the geographies and the inventory types. A change Customer makes in the Platform takes effect when the Platform records it and applies only to conversions resulting from impressions served after that time; conversions resulting from impressions served before it remain billable at the rate then in effect. Audiohook may reject or reverse a change that is non-conforming, that exceeds a limit applicable to the account, or that Audiohook reasonably believes to be erroneous or fraudulent, and will notify Customer through the Platform when it does so. No insertion order, purchase order or other document issued by Customer is required to place a campaign, and no such document varies these Terms, whether or not Audiohook acknowledges it, unless Audiohook executes a writing that expressly references and amends these Terms.

Audiohook may amend these Terms and the Policies. Amendments that are not material take effect when posted. Material amendments to these Terms take effect thirty (30) days after Audiohook posts them, and Audiohook will also notify Customer of them through the Platform or by email to the address on the account. Amendments required by law, by regulation or by a platform on which the Services depend take effect immediately. Amendments to the Advertising Policies and Acceptable Use Policy take effect when posted. Amendments to the Privacy Policy and the Data Processing Addendum take effect as those documents provide. Customer’s continued use of the Services after an amendment takes effect is Customer’s acceptance of it. Audiohook will identify each version of these Terms and each Policy by version number and effective date, will display the current version publicly, and will retain each superseded version with its effective and sunset dates. No signed writing is required for Audiohook to amend these Terms under this clause; any other amendment must be in a writing executed by Audiohook that expressly references these Terms.

The Policies are incorporated into and form part of these Terms. Where a conflict cannot be reconciled, supplemental terms applicable to a particular product control for that product, the Data Processing Addendum controls on matters of data processing, and these Terms control otherwise. Where Audiohook and Customer have executed a data processing agreement, it controls over the Data Processing Addendum to the extent of any conflict, except as to Commerce Data, on which Part III and the Data Processing Addendum continue to control.

Access to certain products or features may be conditioned on Customer’s acceptance of supplemental terms. Once accepted, those supplemental terms form part of these Terms for the product or feature they govern.

Customer is responsible for maintaining the security of its account credentials and for all activity occurring under its account, whether or not authorised. Audiohook personnel may access Customer’s account through an internal support view in order to provide support, investigate a suspected breach of these Terms, or meet a legal obligation. Such access is limited to personnel with a business need, is logged, and is described in the Privacy Policy and in Annex B to the Data Processing Addendum.

Each party may receive information of the other that is marked confidential or that a reasonable person would understand to be confidential, including, in Audiohook’s case, non-public information about pricing methodology, margin, inventory sources, optimisation methods and attribution logic that Customer may observe through the Platform. Each party will use the other’s confidential information only to perform under these Terms and will protect it with at least reasonable care. This clause does not restrict information that is public through no fault of the recipient, independently developed, or lawfully received from a third party, and does not prevent disclosure required by law provided the disclosing party is given reasonable notice where permitted. These obligations continue for five (5) years after termination and, for trade secrets, for as long as they remain trade secrets. Personal information is governed by the Data Processing Addendum and the Privacy Policy rather than this clause.

These Terms apply from Customer’s first acceptance until terminated. Either party may terminate for convenience on written notice, subject to clause 25. Audiohook may suspend or terminate the Services immediately where Customer breaches these Terms or the Policies, where payment cannot be collected, where Audiohook reasonably believes continued delivery would expose it to legal or platform-level risk, or where required by a platform on which the Services depend. Clauses 8, 10 through 14, 17, 18, 20, 21, 22, 24, 25, 30 through 33 and 37, any payment obligation accrued before termination, and any other provision that by its nature is intended to survive, survive termination.

The Services are provided on an “as is” and “as available” basis. Audiohook does not guarantee campaign performance, conversion volume, revenue, attribution continuity, uninterrupted delivery, or the availability or functionality of any third-party platform, technology or integration. Audiohook disclaims all implied warranties, including merchantability, fitness for a particular purpose and non-infringement, to the fullest extent permitted by law.

To the fullest extent permitted by law, neither party is liable for indirect, incidental, consequential, special, exemplary or punitive damages, or for lost profits, revenue or goodwill, arising out of or relating to these Terms, campaign performance, attribution methodology or media delivery, whether or not advised of the possibility. Each party’s aggregate liability arising out of or relating to these Terms is limited to the total fees paid or payable by Customer to Audiohook in the six (6) months preceding the event giving rise to the claim. Neither limitation in this clause applies to Customer’s obligations under clause 12, to Customer’s breach of the Policies, to Customer’s misuse of data obtained through the Services, or to Customer’s payment obligations.

Customer will defend, indemnify and hold harmless Audiohook and its affiliates, officers, employees and agents against any claim, demand, proceeding, loss, liability, damage, settlement or expense, including reasonable attorneys’ fees, arising from or relating to: the advertising materials used in Customer’s campaigns, including where those materials were produced by Audiohook or a third-party vendor at Customer’s direction or from Customer’s inputs; Customer’s products, services or claims about them; Customer’s breach of these Terms or the Policies; Customer’s violation of law; and Customer’s data, including any data Customer supplies, connects or directs Audiohook to access or transfer. Audiohook will notify Customer of a claim promptly, although delay relieves Customer only to the extent it is prejudiced. Customer controls the defence with counsel reasonably acceptable to Audiohook, Audiohook may participate with its own counsel at its own cost, and Customer will not settle a claim in a way that admits fault by Audiohook or imposes an obligation on it without Audiohook’s written consent. If Customer does not assume the defence promptly, Audiohook may defend the claim at Customer’s expense.

These Terms are governed by the laws of the State of Utah, without regard to its conflict-of-laws rules. Each party submits to the exclusive jurisdiction of the state and federal courts located in Salt Lake City, Utah, except that either party may seek injunctive relief in any court of competent jurisdiction to protect its intellectual property or confidential information. Each party waives any right to a trial by jury. Each party waives any right to bring or participate in a claim as a member of a class or in any representative capacity. The parties do not agree to arbitration.

Notices to Audiohook must be sent to Audiohook Corporation, 3632 N Wolf Creek Dr, Eden, Utah 84310, or to any other address Audiohook publishes in the Platform, and are effective on receipt; notices to Customer may be given through the Platform, by email to the address on the account, or by posting. Customer may not assign these Terms without Audiohook’s written consent; Audiohook may assign them in connection with a merger, reorganisation or sale of assets. Neither party is liable for failure to perform caused by events beyond its reasonable control, but such events do not excuse any payment obligation. The parties are independent contractors. Except as clause 28 provides, these Terms confer no rights on any third party. These Terms, together with the Policies and any supplemental terms, are the entire agreement between the parties on their subject matter. If Customer previously accepted Audiohook’s terms of service or executed an insertion order with Audiohook, Customer’s acceptance of these Terms supersedes them for all campaigns delivered after that acceptance, and Customer agrees that this acceptance satisfies any requirement in them that an amendment be made in a signed writing; amounts accrued under them before that acceptance remain payable. If any provision is unenforceable, it is modified to the minimum extent necessary and the remainder continues in effect. Failure to enforce a provision is not a waiver of it. Customer represents that it is not located in, and will not use the Services on behalf of anyone located in, a jurisdiction subject to United States embargo, and that it is not on any United States restricted-party list.

Customer configures each campaign through the Platform. The Campaign Record governs, and Customer is responsible for the accuracy of what it configures, including its selection of conversion type and rate. Audiohook retains sole discretion over pacing, inventory allocation, optimisation methodology and delivery strategy within the spend cap and settings recorded for the campaign. Any volume figure Audiohook provides is a target reflecting mutual expectation; it is not a guaranteed delivery commitment and is not a cap on spend or on amounts payable.

Customer selects the pricing mode and rate in the Platform. Under fixed pricing, Customer pays the stated amount for each billable conversion. Under percentage pricing, Customer pays the stated percentage of the order value attributed to the conversion, and Audiohook’s determination of attributed order value controls for that purpose on the same basis as its conversion determinations under clause 17. Rates apply prospectively as provided in clause 3.

Attribution is performed exclusively through Audiohook’s attribution solution, Tuned. A billable conversion is a conversion meeting the attribution criteria applied by Tuned. The attribution window is the window Audiohook publishes for the applicable conversion type and will not exceed thirty (30) days from the time an impression is served. There is no partial attribution and no apportionment among channels; where a conversion is attributed, it is attributed in full. Audiohook’s attribution determinations are final for billing purposes, and Customer waives any claim arising from attribution of the same event by another measurement provider. Customer may use a third-party measurement provider for its own analysis, but no such measurement governs the conversions counted or the amounts payable under these Terms. The IAB/4As Standard Terms and Conditions for Internet Advertising are not incorporated into these Terms and do not apply to any campaign, and no other industry standard terms govern the conversions counted or the amounts payable under these Terms. Because campaigns are priced on action, delivery, pacing and conversion volume vary, and Audiohook does not offer make-goods, impression reconciliation or guaranteed delivery; impressions are reported for information only. Audiohook may conduct measurement or incrementality testing at its discretion and expense and may share the results with Customer.

Conversions are provisional when recorded and become final thirty (30) days after they are recorded. Audiohook may reverse a provisional conversion that Audiohook determines to be duplicative, erroneous, invalid, fraudulent or generated by automated or non-human activity. Audiohook employs measures to identify invalid activity; those measures are not capable of identifying all such activity, and Audiohook is not responsible for activity that its measures do not identify. Where the order underlying a provisional conversion is cancelled, refunded or charged back before the conversion becomes final, Customer may report the event to Audiohook within ten (10) days after it occurs, with the order identifier and the amount, and Audiohook will reverse the conversion or, under percentage pricing, reduce the attributed order value accordingly. A conversion is not subject to reversal for an event that is not reported within that period or that occurs after the conversion becomes final, and the amount remains payable. Audiohook may reconcile against any refund, cancellation or payment-status data it receives and may reverse conversions accordingly. Reversals are applied as credits under clause 21, and Audiohook’s determinations under this clause are final for billing purposes.

Customer is responsible for the installation, maintenance and proper functioning of the Tag. If the Tag is removed, altered, disabled or otherwise fails to transmit attribution data, media delivered from the date Audiohook identifies the failure until the Tag is restored and confirmed working will be billed on an impression basis at the impression rate published in the Platform when the media is delivered or, if none is published, at $25.00 per one thousand (1,000) impressions, as determined by Audiohook’s reporting. Audiohook will notify Customer through the Platform or by email when it identifies a failure, and Customer may pause the campaign at any time. Uninstalling the Audiohook application, or turning off its theme app embed, while a campaign is running is a failure of the Tag. The parties agree that this reflects an alternative method of pricing media actually delivered and is not a penalty or a measure of damages.

Customer will provide and maintain a valid payment method. Unless Audiohook has extended invoiced credit to the account, Audiohook will charge Customer’s payment method daily for amounts accrued, and where a payment method fails Audiohook may charge any other payment method Customer has provided. Where Audiohook extends invoiced credit, it does so up to a credit limit that Audiohook sets and may change or withdraw at any time, and each invoice is due within fifteen (15) days of its date unless the invoice states otherwise. If any amount remains uncollected three (3) business days after it is due, Audiohook may suspend delivery, and a suspended campaign remains inactive until all outstanding amounts are paid. Audiohook may pause delivery immediately where collection fails. Overdue amounts bear interest at the lesser of one and one-half per cent (1.5%) per month and the highest rate permitted by law, and Customer will reimburse Audiohook’s reasonable costs of collection, including attorneys’ fees. Customer must raise any dispute about a charge or invoice within thirty (30) days after it is made or issued, failing which the charge or invoice is final. Customer is responsible for all taxes other than taxes on Audiohook’s income.

Where Customer pays Audiohook through an affiliate network or similar platform, that platform administers payment only. Audiohook’s determinations under clause 17 control over any figure the platform reports, the platform’s validation, locking or adjustment periods do not extend the periods in clause 18, and Customer remains liable to Audiohook for any amount the platform does not remit.

All amounts paid are non-refundable. Where Audiohook reverses a conversion under clause 18 or otherwise determines that an adjustment is appropriate, the adjustment is applied as a credit against amounts subsequently payable and is not returned in cash. Audiohook may issue credits at its discretion. Credits are non-transferable, have no cash value, may not be redeemed for cash on termination, and expire twelve (12) months after issue unless stated otherwise.

Two categories of material are used in campaigns, and different rules apply to each.

Audiohook provides reporting through the Platform. Customer may export reports, schedule recurring delivery to recipients it designates, and share reports through the features Audiohook makes available. Customer is solely responsible for the recipients it designates and for the handling of data once exported, and will ensure that each recipient is permitted to receive it. Audiohook may disable an export destination or a scheduled delivery where it reasonably believes the transfer would breach these Terms, the Policies, applicable law or the requirements of a platform on which the Services depend. Affiliate conversion export is not available for conversions derived from Commerce Data unless the relevant Merchant has separately consented to that transfer and Audiohook has recorded the consent.

Customer grants Audiohook the right to use aggregated and anonymised campaign performance data for marketing, case studies and promotional purposes, and for operating, measuring and improving the Services. That right does not extend to Commerce Data in any form, including anonymous, aggregated and derived forms. Audiohook will not use Commerce Data to train or improve any machine learning or artificial intelligence model, will not transfer Commerce Data or data derived from it to any third party except as these Terms permit, and will not use Commerce Data for competitive benchmarking. Audiohook will not include Customer’s name, trademarks or other identifiers in publicly facing materials without Customer’s prior written approval, except that Audiohook may identify Customer by name and logo in lists of its customers until Customer asks it to stop. Audiohook will not join zip-level or other precise location targeting to Commerce Data.

Customer may pause or stop a campaign at any time through the Platform, and delivery ceases when the Platform records the instruction. There is no minimum campaign term and no notice period. Customer remains responsible for all conversions attributable to impressions served before delivery ceased, and Audiohook will continue to bill for them for up to thirty (30) days afterwards at the rate in effect when the impression was served. Audiohook may pause, suspend or stop delivery at any time in accordance with clause 9 or clause 20.

“Commerce Platform” means a commerce or e-commerce platform for which Audiohook offers an integration, including Shopify. “Commerce Account” means a store, shop or merchant account on a Commerce Platform that is connected to the Platform. “Merchant” means the person or entity that owns or controls a Commerce Account. “Commerce Data” means data Audiohook receives from or about a Commerce Account through the Commerce Platform’s interfaces, together with anything derived from that data in any form, including aggregated, anonymised, pseudonymised, statistical, modelled and inferred forms.

Customer may connect a Commerce Account only where it owns that account or holds the Merchant’s authority to connect it. By initiating a connection Customer represents that it holds that authority; that the authority extends to the access, use, retention and deletion of Commerce Data described in these Terms, the Data Processing Addendum and the Privacy Policy; and that it will notify Audiohook without delay if the authority is withdrawn or ceases to be effective. Where the individual authorising the connection acts for an entity other than the account holder, Customer must identify that entity at the connect step, and the representation in this clause is given by both Customer and that entity, each of which is jointly and severally liable under clause 2. Audiohook may require evidence of authority, may refuse a connection, and may disconnect a Commerce Account where authority is disputed or cannot be evidenced.

Customer acknowledges and agrees that, in respect of each Commerce Account it connects: (a) Audiohook, and not the Commerce Platform, is solely responsible for the Audiohook application and the Services, including their operation, maintenance, support and content, and for any claim relating to them; (b) the Commerce Platform is not a party to these Terms and has no liability to Customer or to any Merchant in respect of the Audiohook application, the Services or these Terms, including for any fault in the application or any harm resulting from its installation or use; (c) the Commerce Platform does not provide support for the Audiohook application or the Services, and all support requests must be directed to Audiohook at the contact published in the Platform; and (d) Audiohook is solely responsible for the Commerce Data it accesses and for handling that data in accordance with these Terms, the Data Processing Addendum and the Privacy Policy. The Commerce Platform is an intended third-party beneficiary of this clause 28 and may enforce it.

Audiohook requests only the data it needs to attribute, measure and bill conversions. Audiohook does not request, receive or store a customer’s name, email address, telephone number or billing address. From the shipping address Audiohook reads only the country code and the province or state code, to total sales by geography, and does not read or store address lines, city, postal code or geolocation. Where the Commerce Platform requires approval to access the shipping address for that purpose, Audiohook will hold that approval and use the field only for that purpose. Audiohook keeps location derived from an IP address no finer than city. If Audiohook later seeks access to any other protected field, it will present the revised data categories at the connect step and obtain acceptance before the scope is requested; no expanded scope may be requested against an existing connection on the strength of an earlier acceptance.

Audiohook uses Commerce Data only to provide the Services to the Merchant to whom it relates, and only within the limits that Merchant sets. Audiohook will not use Commerce Data, in identified, pseudonymous, anonymous, aggregated, derived or any other form, to develop, train, fine-tune, validate or improve any artificial intelligence or machine learning model, except in respect of a single Merchant’s own data where that Merchant has consented in writing. Audiohook will not combine Commerce Data originating from different Merchants for any modelling purpose, will not use Commerce Data for competitive benchmarking, will not attempt to re-identify any pseudonymous identifier or join precise location or postal-code data to Commerce Data, will not contact any individual whose information is contained in Commerce Data, and will not use Commerce Data to build audiences or target individuals. The licence Customer grants Audiohook under clause 24 does not extend to Commerce Data in any form.

Conversions derived from Commerce Data may not be exported, transmitted or otherwise transferred to any third party, including an affiliate network, tracking platform or partner postback endpoint, unless the Merchant to whom the Commerce Data relates has separately consented to that transfer and the consent is recorded in the Platform. Until that consent is recorded, affiliate conversion export and equivalent onward-transfer features are unavailable for Commerce Data, and Audiohook may withhold, filter or suppress affected records from any export, scheduled delivery or integration Customer configures. Customer must not circumvent this clause by extracting the same information through reporting, the interface or any programmatic means.

Audiohook may receive refund, cancellation and payment-status information from a Commerce Account and may use it for measurement and reporting. Receipt of that information is not a report by Customer under clause 18 and does not oblige Audiohook to reverse a conversion. Audiohook may reverse conversions on the basis of that information as clause 18 permits. Otherwise, reversal is available only where Customer reports the event under clause 18, and the periods and consequences in clause 18 apply.

Audiohook will delete Commerce Data within thirty (30) days of the earliest of: the Commerce Account being disconnected; the Audiohook application being uninstalled from the Commerce Account; termination of these Terms; and a deletion request from the Merchant. Deletion is performed in accordance with clause 10 of the Data Processing Addendum. The lifecycle of the Commerce Account and the lifecycle of Customer’s Audiohook account are independent: uninstalling the application does not close the Audiohook account, closing the Audiohook account does not by itself remove the application from the Commerce Account, and the deletion obligation in this clause applies in either case. Audiohook may retain Commerce Data beyond that period only where a law requires it, and only for as long as that law requires. Backup and archive copies are deleted when they expire, within one hundred eighty (180) days, and are not restored to active use or otherwise used in the meantime.

Audiohook maintains the technical and organisational measures described in Annex B to the Data Processing Addendum in respect of Commerce Data. Where Audiohook becomes aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Commerce Data, it will notify Customer in accordance with clause 8 of the Data Processing Addendum and will make any notification the Commerce Platform requires within the period that platform requires. Nothing in these Terms limits or delays a notification Audiohook owes the Commerce Platform.

Customer must maintain its own agreement with the Commerce Platform in good standing, must comply with that platform’s terms in its use of the integration, and must not use the integration in a manner that would cause Audiohook to breach the Commerce Platform’s terms. Customer is responsible for the accuracy and completeness of the data made available through the Commerce Account, for maintaining any privacy notice, disclosure or consent that applicable law requires in respect of the individuals whose information that data concerns, and for the configuration of the Commerce Account, including which data the connection makes available. Customer’s indemnity under clause 12 extends to any claim arising from a defect in the authority given under clause 27 or a failure to obtain a disclosure or consent required by this clause.

Audiohook may change, restrict, suspend or discontinue an integration with a Commerce Platform at any time, including where the Commerce Platform changes or withdraws the interfaces on which it depends. Changes to this Part III that are required by a Commerce Platform, or that are necessary to maintain Audiohook’s compliance with a Commerce Platform’s terms, take effect when posted, notwithstanding the notice period in clause 4, and Audiohook will notify Customer of them. Audiohook may disconnect a Commerce Account immediately where the Commerce Platform directs it, where authority under clause 27 is disputed, or where Audiohook suspects a breach of this Part III. Disconnection of a Commerce Account does not terminate these Terms, and amounts accrued before disconnection remain payable.

On matters concerning a Commerce Account or Commerce Data, this Part III controls over Parts I and II. On matters of data processing, the Data Processing Addendum controls over this Part III, in accordance with clause 5. Clauses 30, 31, 32 and 33 survive termination of these Terms and disconnection of a Commerce Account for as long as Audiohook holds Commerce Data or an amount remains subject to reversal or set-off.