Marketplace Inventory Addendum

This Marketplace Inventory Addendum (this “Addendum”) supplements and incorporates by reference SoundStack’s General Terms and Conditions (the “General Terms”).  All provisions of the General Terms apply to this Addendum.  In the event of any conflict between the terms of this Addendum and the General Terms, the terms of this Addendum shall prevail.  This Addendum must be read and interpreted in conjunction with the General Terms to form a complete Agreement.

1.         DEFINITIONS; SECTION REFERENCES.

The definitions for some of the defined terms used in this Addendum are set forth below.  The definitions for other defined terms are set forth elsewhere in this Addendum.  Unless otherwise stated herein, all section references are to sections contained in the body of this Addendum.

1.1          “Ad Server” means a system that delivers and/or tracks Ads.

1.2         “Advertisement Parameters” means the content parameters for Advertisements provided by Customer to SoundStack from time to time.

1.3         “Connector” means a third-party link created by SoundStack or via SoundStack Monetize that connects a Digital Property with Buyers delivered via VAST or OpenRTB to transact Marketplace Inventory.

1.4         “Customer Revenue” means the Net Revenue less the SoundStack Marketplace revenue share fee set forth in the Order.

1.5         “Forced Click” means where a person, automated script, or computer program imitates a legitimate User clicking on an Ad for the purpose of generating a cost per click (or giving the impression of artificially high click-through rates) without having actual interest in the target of an Advertisement’s link.

1.6         “Invalid Traffic” means listening activity that is: (i) generated by non-human actors; (ii) the result of any Prohibited Activities; or (iii) the result of any other fraudulent activity. 

1.7         “Listen Through Rate” or “LTR” means the percentage of an Advertisement played, calculated as a percentage of Impressions that registered one hundred percent (100%) playback. The formula for LTR is: LTR = (Impressions at 100% completion) divided by the number of Impressions.  The LTR is set forth in the Order.

1.8         “Net Revenue” means the amount of revenue actually collected by SoundStack from Buyers for Impressions delivered through the Marketplace Inventory less any third-party advertising fees incurred by SoundStack in connection therewith, including, without limitation, DSP fees, ad serving fees, and data targeting fees.  Net Revenue shall be calculated from data provided by each Buyer’s Ad Server (“3rd Party Reporting”).  In the event that 3rd Party Reporting is unavailable to SoundStack, Net Revenue shall instead be calculated using data originating from the Platform or the primary Ad Server through which Impressions were delivered (“1st Party Reporting”).

1.9         “Payment Term” means, unless otherwise specified in the Order, one-hundred-twenty (120) days after the last day of the calendar month in which Impressions were delivered.

1.10      “Prohibited Activities” means Customer, directly or indirectly, (i) creating Impressions or User activity via Forced Clicks or other fraudulent means; (ii) intentionally incentivizing Users to click on Advertisements without the prior written approval of SoundStack; (iii) serving or driving traffic to Advertisements using any downloadable applications without the prior written approval of SoundStack; (iv) altering any Advertisements, ad code (including text, html, or graphics), or display mechanisms, images, or Code related thereto; (v) interfering with, modifying, minimizing, or obscuring any Advertisement; (vi) modifying or rendering ineffective any tag, pixel, or Code that allows SoundStack or its partners to perform targeting or analytics related to Advertisements; (vii) redirecting a User away from any web page accessed by a User after clicking on any part of an Advertisement (“Advertiser Page”), providing a version of the Advertiser Page different from the page a User would access by going directly to the Advertiser Page, or interspersing any content between the Advertisement and the Advertiser Page; (viii) causing an Advertisement to be displayed on any website, mobile property, or online service other than the specific Digital Property from which the applicable Marketplace Inventory was received; or (ix) knowingly serving or driving traffic using any artificial means such as robots, bot farms, or any non-human means.

1.11       “Remittance” means an amount of Customer Revenue paid to Customer by SoundStack less (i) any Taxes; (ii) fees reasonably and actually incurred by SoundStack to make payments to Customer pursuant to Section 3.3, such as wire fees; (iii) any deductions pursuant to Section 3.5 and/or Section 3.7; and (iv) any documented, out-of-pocket pro-rated costs and expenses (including reasonable attorneys’ fees) that SoundStack incurs in attempting to collect such revenue from Buyers.

1.12      “SoundStack Marketplace” means SoundStack’s global digital marketplace where Buyers can place targeted Advertisements to specific segments across a collection of Marketplace Inventory made available by Customer and Third-Party Inventory made available from Supply Partners.

1.13      “SoundStack Monetize” means SoundStack’s proprietary Services that focus on direct Ad serving, programmatic enablement, Connectors, and Marketplace Inventory and Third-Party Inventory representation through SoundStack Marketplace.

1.14      “Supply Partner” means third-party sources of Third-Party Inventory, including, without limitation, publishers, podcasters, and audio networks.

2.         SALE OF MARKETPLACE INVENTORY VIA SOUNDSTACK MONETIZE.

2.1         Appointment; Grant of Rights.  To the extent Customer designates particular Marketplace Inventory for sale by SoundStack hereunder (either on the Platform or through an Integration), Customer hereby: (i) appoints SoundStack as its non-exclusive representative for the sale of such Marketplace Inventory until Customer rescinds said appointment in accordance with the terms of the Agreement; (ii) grants SoundStack authority to promote, open, manage, and negotiate the terms of sale of Marketplace Inventory with prospective and actual Buyers in accordance with the Advertisement Parameters; (iii) grants Buyers the right to resell such Marketplace Inventory; (iv) grants SoundStack the right to serve and to have served Advertisements into the Marketplace Inventory on behalf of Buyers; and (v) collect from Buyers all monies due and payable in connection with the sale of such Marketplace Inventory.  SoundStack may sublicense the license set forth in Section 9.2 of the General Terms to any Buyers that are reselling the Marketplace Inventory solely for such Buyers to market, promote, advertise, and re-sell the Marketplace Inventory.        

2.2        Customer’s Obligations and Restrictions.  In addition to its other obligations and restrictions under the Agreement, including, without limitation, Section 4.2 and Section 4.3 in the General Terms, if Customer designates particular Marketplace Inventory for sale by SoundStack hereunder, Customer shall: (i) comply with any Editorial Adjacency Guidelines; and (ii) display or run the Advertisements with the audio turned on and in connection with Content that is User-requested and initiated (i.e., no “autoplay” Content); (iii) ensure that the Marketplace Inventory meets applicable industry standards for audibility and fraud applicable to the digital industry as released by the IAB, MRC, and similar industry groups; (iv) as requested, reasonably cooperate with SoundStack to enrich data, including, without limitation, key data parameters, MAIDs, and other types of Device IDs to sell the Marketplace Inventory; and (v) as requested, reasonably cooperate with SoundStack to ensure ads.txt and app-ads.txt are properly configured and updated at least once per quarter as needed by SoundStack to represent the Marketplace Inventory.

2.3        IAB Standards. For any Content that constitutes a podcast and is not hosted through the Platform (“External Podcasts”), Customer represents and warrants that: (i) such External Podcasts are hosted exclusively on platforms that meet the requirements for certification under version 2.1 (or any successive version) of the IAB Podcast Measurement Technical Guidelines, which are located at: https://iabtechlab.com/standards/podcast-measurement-guidelines (the “IAB Standards”); and (ii)  all Ad Impression data related to External Podcasts and provided to SoundStack are in accordance with the IAB Standards.

2.4        Customer Acknowledgment.  Customer acknowledges and agrees that: (i) SoundStack is not the creator or owner of the Advertisements and therefore shall have no liability with respect to the Advertisements; and (ii) if any Advertisement violates the Advertisement Parameters and Customer provides SoundStack with prompt written notice of the same, SoundStack’s sole obligation, and Customer’s sole remedy, shall be SoundStack’s using commercially reasonable efforts to replace the Advertisement with an Advertisement that complies with the Advertisement Parameters in all material respects.

3.        REVENUE SHARE PAYMENTS.

3.1         Buyer Billing.  In connection with SoundStack’s sale of Marketplace Inventory pursuant to Section 2, SoundStack will separately bill Buyers for their respective Marketplace Inventory purchases.

3.2        Revenue Statement. On the last day of each calendar month, SoundStack shall deliver a statement to Customer setting out (i) the number of Impressions actually delivered for the preceding calendar month; and (ii) the Net Revenue and Customer Revenue earned (though not necessarily actually collected) from such Impressions.

3.3        Remittances.  Within five (5) business days after each Payment Term, SoundStack shall send a Remittance for the amount of the Customer Revenue for the applicable month that has been actually collected within the applicable Payment Term.  For any amounts of Customer Revenue collected by SoundStack after the Payment Term, SoundStack shall issue subsequent Remittances on the first business day of the month following the month in which the amount was collected, except when such collection occurs fewer than seven (7) business days before the end of the month, in which case the amount shall be remitted by the first business day of the second month following the month of collection. Notwithstanding anything to the contrary herein, if a Remittance is set to be less than One Hundred Dollars ($100), no payment shall be made by SoundStack until the amounts owed to Customer exceed such amount.

3.4        Currency. All amounts shall be paid in the currency specified in the Order; provided that if no currency is specified, the currency shall be United States Dollars.

3.5        Invalid Impressions. If at any time SoundStack or one of its third-party verification vendors determines any Impressions were the result of Prohibited Activities, Invalid Traffic, or were served on Content in breach of Section 2.3 and provides evidence to Customer (collectively, “Invalid Impressions”), SoundStack has the right to collect from Customer any amounts previously paid to Customer for such Invalid Impressions. 

3.6        Setoff.  Notwithstanding any other provision of the Agreement and without limiting SoundStack’s rights in Section 3.7, SoundStack may delay or withhold payment of any sums due and payable to Customer, in whole or in part, on account of Invalid Impressions, any failure of Customer to perform in accordance with the Agreement, or for other reasonable cause, including to offset any unpaid Fees or any damages, costs, or expenses incurred by SoundStack on account of any default by Customer with respect to any representations, warranties, or obligations set forth in the Agreement.

3.7        Buyer Reconciliation; Uncollectible Amounts. In the event that SoundStack is obligated to return an amount of money to a Buyer due to such Buyer’s statistical errors or failure to collect such amount from its Advertisers (a “Reconciliation Amount”), then, provided the Reconciliation Amount was paid to Customer within the preceding twelve (12) months, SoundStack may (i) deduct the Reconciliation Amount from any future Remittances; and/or (ii) invoice Customer for the Reconciliation Amount, whereupon such invoice shall be paid by Customer within thirty (30) days of receipt, unless another timeline is agreed upon in writing by the parties.  With respect to any uncollectible amounts from Buyers, SoundStack hereby covenants to exert commercially reasonable efforts to minimize bad debt and to collect all amounts due and payable from Buyers.  

4.        MARKETPLACE DISCLAIMER.

IN ADDITION TO THE DISCLAIMER SET FORTH IN SECTION 11.4 OF THE GENERAL TERMS, SOUNDSTACK MAKES NO WARRANTIES WITH RESPECT TO THE ADVERTISEMENTS, THE SUPPLY PARTNERS, THE THIRD-PARTY INVENTORY, OR OTHERWISE IN CONNECTION WITH THIS ADDENDUM AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE.  TO THE EXTENT THAT SOUNDSTACK MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.