Capped Out Media is exclusively used for digital products, if you violate Mastercard regulations by using Capped Out Media for physical products you will be terminated immediately.

WS Media Labs, LLC, develops and delivers proprietary, industry-specific technology and data solutions designed to support the ecommerce and digital marketing needs of advertisers and merchants, including our technology-enabled Capped Out Media service (“Capped Out Media”). We deploy Capped Out Media remotely through the cloud and make it accessible via either mobile apps or online, web-based interfaces such as https, VPN or API. Certain additional capitalized words and phrases in these Terms of Service have special meanings that are provided in Section 14, or if not so defined, are indexed in Section 14. The English language version of these Terms of Service is the controlling version regardless of any translation.

1. Accessing Capped Out Media. These Terms of Service establish each of your and WS Media’s legal rights and obligations. Capped Out Media is typically made available as an embedded or bundled component of the software and services offered by our business partners. Prior to using Capped Out Media, you and Users will be required to download a mobile app, or visit an Internet site, through which you will access an online portal to set up an account. Account set up includes our issuance or your creation of authentication credentials (e.g., user name/password). You and Users must maintain strict confidentiality of such credentials. Access to the portal and use of mobile apps will be governed by these Terms of Service whether or not they are referenced or linked to from the portal or app. If specific commercial and business terms are necessary between you and WS Media beyond those set forth in your agreement with our business partner, those terms will be identified in a print or electronic ordering document we provide (each, an “Order”). These Terms of Service and each Order entered into under them form a separate contractual arrangement between you and WS Media, each of which is referred to as an “Agreement.”

2. Use Rights, Metrics and related Terms.

2.1 Use Rights and Metrics. We grant to you, during the applicable Order Term, a personal, revocable, non-exclusive, non-assignable, non-transferable right to: (a) access and perform, remotely through the applicable mobile app or online interface, the executable features and functions, and perform and display the content and graphical components of Capped Out Media solely in connection with your internal business operations; (b) display and reproduce the documentation for Capped Out Media as reasonably required for such use; and (c) permit Users to exercise all or a portion of the your rights (collectively, “Use Rights”). Use Rights extend to updates we provide as part of the Cloud Services. Orders may list metrics, including number of users, data volume or other means to measure usage or fees (the “Usage Metrics”). The Use Rights are subject to the Usage Metrics and any other restrictions in the Agreement. If you exceed Usage Metrics, we may suspend access to Capped Out Media until you have paid the required fees. You must bind Users to the Agreement and your Use Rights.

2.2 Conditions; Acceptable Use. The Use Rights are subject to the Agreement and the only acceptable use of Capped Out Media. You are expressly prohibited from doing any of the following to Capped Out Media, or using them for purposes of, or in connection with: (a) engaging in any activity that violates payment card rules such as so-called load balancing whereby customer transactions are distributed across multiple merchants; (b) reverse engineering, making machine code human readable or creating derivative works or improvements; (c) copying them; (d) commercially exploiting or providing them to third parties other than Users (whether by sublicense, sale or other means); (e) introducing malicious code; (f) interfering with their security or operation; (g) framing or mirroring them outside of your own intranets; (h) creating, benchmarking or gathering competitive intelligence; or (i) removing, modifying or obscuring proprietary rights notices; (j) defaming or harassing; (k); infringing another’s IPR including failing to obtain permission to upload/display works of authorship; (l) intercepting or expropriating data; (m) spamming, spoofing or otherwise misrepresenting transmission sources; and/or (m) employing them in hazardous or high risk environments. You must comply with all laws applicable to your use of Capped Out Media including U.S. export control laws such as export to embargoed, prohibited or restricted countries or access by prohibited, denied and specially designated persons.

3. Third Party Software and Data. Certain Third Party Software and Data may already be fully integrated with Capped Out Media such that the user experience does not change and we do not charge as a separate line item (“Integrated Third Party Software and Data”). We have been authorized to resell, distribute, or otherwise provide our customers with the Integrated Third Party Software and Data and do so on either a sublicense or pass-through basis, subject to the separate terms and conditions of its owners and licensors may require us to flow-down to you. We do not have the authority to modify those terms and conditions but do hereby represent that we have the authority to so provide the Integrated Third Party Software to you under each applicable Order such that you may use it in connection with Capped Out Media. To the extent they vary materially from these Terms of Service, we will make any required flow-down terms available to you upon request. If additional Third Party Software and Data is required or optionally available for Capped Out Media we will identify it for you and you will be responsible for obtaining and paying for your own rights from the applicable third party licensor or requesting that we obtain such rights on your behalf and receiving reimbursement from you of any fees therefor.

4. The Services. As may be more fully agreed and described in an Order, we will perform Services to set-up and implement Capped Out Media in its Cloud-based production environment and integrate feeds or other interfaces within the agreed scope (the “Implementation Services”). Some Modules may require the set-up of an appliance or virtual machine at your location or on your or your third party vendor’s network. The Implementation Services will include these services to the extent set forth in the applicable Order. Following completion of the Implementation Services and payment therefor, we will perform ongoing Services during the term of the applicable Order to manage, support, and maintain Capped Out Media in, and make them available from, our cloud infrastructure in accordance with the terms of the Order (the “Cloud Services”). You understand we do not provide and our Services do not include regulatory advice or compliance services. You are solely responsible for determining whether your use of Capped Out Media is permitted under such laws and industry self-regulatory rules, including payment card industry rules, as are applicable to your business.

5. IPR Ownership; Data Rights. As between you and WS Media, all IPR in and to Capped Out Media and all of its derivative works and improvements as well as anything created under Section 4, are owned or licensed by, and are proprietary to, WS Media. Unless otherwise expressly agreed under an Order with reference to this Section, your rights in and to them are limited to the scope of the Use Rights. To the extent you provide access under your Use Rights to a government agency, and for all purposes related Federal Acquisition Regulations, Defense Federal Acquisition Regulations or their state analogs, no IPR ownership is transferred or rights granted to a government agency. Capped Out Media is “commercial computer software”, “commercial computer software documentation” and “restricted data” provided under “Limited Rights” and “Restricted Rights” and only as commercial end items. You hereby grant to us a worldwide, perpetual, irrevocable, non-exclusive, license to possess and use the Customer Data in any lawful manner necessary to carry out the calculations, processing and analytics needed to deliver Capped Out Media. You hereby represent and warrant to us that you have all right and authority necessary to lawfully transfer Customer Data to us for use in Capped Out Media and as otherwise contemplated hereby. To the extent Customer Data may include Personal Data (such as drivers’ license or financial account information) you hereby expressly consent to our possession, use and sharing of the Personal Data to the same degree as described by the foregoing license. As between you and WS Media, you are solely responsible for ensuring you have the necessary authorization of your Users and workforce members to provide the foregoing consent with respect to Personal Data deemed to be theirs.

6. Fees, Taxes, Expenses and Payments. Unless we provide you with an Order stating otherwise, the fees for Use Rights and/or Services purchased (the “Fees”) are bundled with the fees you pay our business partner. If an Order does require separate fees, WS Media will provide Customer with a single invoice reflecting the Fees due for the relevant invoicing period and such invoice will be payable within net 30 days of the invoice date. Customer will provide accurate billing and contact information to WS Media and notify WS Media of any changes to such information. Your obligation to pay under any one Order is not contingent on your entering into or our performing under any other Order now or in the future. Fees do not include Customer Taxes, nor do they include expenses we may incur for your direct benefit, which will be incurred in accordance with your applicable expense-reimbursement policies, if so requested, provided that the relevant policies are provided to us in writing in advance. If WS Media has the legal obligation to pay or collect Customer Taxes, WS Media will invoice Customer and Customer will pay that amount unless Customer provides WS Media with a valid tax exemption certificate authorized by the appropriate taxing authority. If we do not receive timely payment, we may charge the maximum monthly interest allowed by law up to one percent per month, suspend our performance and seek cost of collection, including reasonable attorneys’ fees. Payment obligations are non-cancelable and fees paid are non-refundable. If you dispute invoiced amounts, you must submit disputes to us in writing on or before the date the invoice becomes due, otherwise it will be final and non-refundable.

7. Term and Termination.

7.1 Term of these Terms of Service. Your Use Rights and these Terms of Service commence on the Master Effective Date and continue, unless earlier terminated pursuant to this Section, until the later of the first anniversary of the Master Effective Date or the expiration of your contract with our business partner (the “Initial Master Term”). Thereafter these Terms of Service will not renew unless we provide you with 45 days advance written notice of renewal, (each a, “Renewal Master Term”; the Initial Master Term and all such Renewal Master Terms collectively, the “Master Term”).

7.2 Termination. If an obligation under an Agreement is materially breached, the non-breaching party may provide written notice specifying the nature of the breach and the breaching party will have 30 days from receipt of notice to cure. If not so cured, the non-breaching party may terminate the applicable Order or Orders (and all Agreements formed by them) affected by the breach by providing a second written notice of immediate termination. In addition, all Orders, including all Use Rights under them, shall terminate automatically and immediately upon your insolvency or any attempt by you to obtain protection from creditors or wind down operations, unless otherwise agreed by us in a written notice. If an Order is terminated by either party or expires pursuant to its terms, then you must pay any outstanding amounts due to us, and all copies and embodiments of our confidential information (including Capped Out Media), must be returned. We will, upon request following such termination or expiration, make reasonable attempts to provide a copy of the Customer Data you specifically entered an Module, in its native format.

8. Confidentiality. All confidential, non-public information one party receives from the other in its performance of an Agreement, including the contents of these Terms of Service and all Orders, shall be held in strictest confidence and shall not, without the express written consent of the disclosing party, be used or disclosed except to those of the receiving party’s employees, service providers, and individual independent contractors who are bound to substantially similar obligations of confidentiality and have a need to know or as required by law. If the parties entered into a separate confidentiality agreement prior to entering into these Terms of Service, the non-disclosure, non-use provisions and the definitions of “confidential information” thereunder shall control over this Section. All other terms of such separate confidentiality agreement shall be deemed superseded and replaced by these Terms of Service and thus null and void.

9. Indemnity and Liability. You will indemnify, defend and hold us and all or affiliates, subsidiaries, brands, officers, directors, employees, members, managers and representatives harmless from all third party claims or causes of action (including investigations) and any resulting damages, costs, expenses, or fines (including reasonable legal costs) arising from Customer Data, your breach of an Agreement including engaging in any of the prohibited uses described in Section 2.2 and the warranty in Section 5 and/or our use of the Third Party Software and Data not provided by us including any third party point of sale or other system or service you request that we integrate to or interface with. TO THE MAXIMUM EXTENT PERMITTED BY LAW (A) WE EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY (INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR PURPOSE AND NON-INFRINGEMENT); AND (B) WE DO NOT WARRANT THAT DIGITAL WALLET MEETS YOUR REQUIREMENTS, OPERATES WITHOUT INTERRUPTION, OR IS ERROR FREE. WE ARE NOT LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, RELIANCE, OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR LOST DATA AND EACH PARTY’S TOTAL LIABILITY FOR ALL CLAIMS ARISING IN CONNECTION WITH ALL AGREEMENTS WILL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT EQUIVALENT TO THE FEES ACTUALLY RECEIVED BY US UNDER THE ORDER OUT OF WHICH THE CLAIM AROSE DURING THE SIX MONTHS IMMEDIATELY PRECEDING ASSERTION OF THE CLAIM. You must bring all claims and causes of action within six months of their being discovered or six months after expiration or termination of the Order out of which the claim arises, whichever occurs first. The limitations and exclusions in this Section apply to all claims or causes of action under whatever theory brought and regardless of whether we were advised of the possibility of the claim.

10. Assignment. You may not assign or transfer these Terms of Service, any Use Rights, and/or any Order unless you make a request in writing in advance and we reply in writing consenting to your request. We may require you and the proposed assignee/transferee to agree to additional terms or pay additional fees. We do not give blanket consents, so you will follow these procedures for each additional or subsequent transfer or assignment you or your permitted assignees/transferees wish to make. Any change in the ownership or control of Customer or your parent entity will be considered a transfer requiring our written consent to the same extent as other attempted assignments or transfers. As used herein, the term “control” has the meaning given to it under the United States Securities Exchange Act of 1934.

11. Disputes; Governing Law.

11.1 Governing Law. The laws of the State of Utah will govern all Agreements without regard to the principles of conflicts of laws. All Disputes arising out of (or relating to) an Agreement shall be resolved as set forth below.

11.2 Consent to Arbitration. IF EITHER YOU OR WS MEDIA WANT TO BRING A CLAIM OR CAUSE OF ACTION AGAINST THE OTHER UNDER AN AGREEMENT, OR IF ANY DISPUTE ARISES BETWEEN THE PARTIES AS A RESULT OF AN AGREEMENT OR YOUR USE OF OUR MOBILE APPS, MODULES OR SOLUTIONS, EACH PARTY AGREES TO USE ARBITRATION AS THE SOLE AND EXCLUSIVE MEANS TO BRING SUCH A CLAIM OR CAUSE OF ACTION OR TO RESOLVE SUCH A DISPUTE. YOU UNDERSTAND THAT BY AGREEING TO THE FOREGOING AND THE MORE SPECIFIC ARBITRATION TERMS BELOW, EACH OF YOU AND WS MEDIA ARE GIVING UP THEIR RIGHT TO FORM OR BE A PART OF A CLASS ACTION OR OTHER REPRESENTATIVE LAWSUIT. YOU ARE NOT, HOWEVER, WAIVING YOUR ABILITY TO RECOVER DAMAGES. ALTHOUGH ARBITRATION PROCEDURES ARE DIFFERENT FROM COURT PROCEDURES, AN ARBITRATOR CAN AWARD YOU INDIVIDUALLY THE SAME DAMAGES AND RELIEF AS A COURT, AND JUDGMENT ON THAT AWARD MAY BE ENTERED AND ENFORCED IN ANY COURT OF COMPETENT JURISDICTION.

11.3 Arbitration Procedures. Except for the right of a party to seek injunctive relief in any U.S. court of competent jurisdiction, all claims, causes of actions and disputes (collectively, “Disputes”) that cannot be resolved by the parties after a good faith effort at negotiation shall be submitted for arbitration administered by the American Arbitration Association ("AAA"). The AAA will apply the Commercial Arbitration Rules (excluding any rules or procedures governing or permitting class actions). You can get procedures (including the process for beginning an arbitration), rules, and fee information from the AAA website (www.adr.org). The party seeking to commence arbitration must first notify the other party in writing at least 30 days in advance of initiating the arbitration. Notice to WS Media should be sent to our mailing address “ATTN: Arbitration Demand.” We will provide notice to your email address(es) and street address(es), if any, associated with the applicable Order at the time the notice is sent, if any. The notice must describe the nature of the claim and the relief being sought. Regardless of such notice, no arbitration may be commenced if barred by the statute of limitations applicable to the Dispute. The arbitrators shall have no power to award punitive damages or any other damages not measured by the prevailing party’s actual damages or damages in excess of the limitations set forth in Section 9. Even if other portions of these arbitration provisions are held to be invalid or unenforceable, the arbitrators shall not have the power award or impose any remedy that could not be made or imposed by a court sitting in the jurisdiction and venue agreed to by the parties and deciding the matter in accordance with the governing law agreed to by the parties. All aspects of the arbitration including the result shall be treated as confidential and shall not be disclosed unless required by legal, audit, or regulatory requirements. The amount of any settlement offer made by either of us prior to arbitration cannot be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. The arbitration proceedings are subject to the US Federal Arbitration Act and hereby declared to be self-executing, and it shall not be necessary to petition a court to compel arbitration. The award of the arbitrators shall be binding and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction. Unless you and WS Media agree otherwise, the arbitration will occur in U.S. English and take place in Salt Lake City, Utah. Payment of any fees will be decided by the applicable AAA rules.

11.4 Class Action Waiver. YOU AND WS MEDIA AGREE THAT EACH MAY BRING CLAIMS TO THE FULLEST EXTENT LEGALLY PERMISSIBLE AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and WS Media agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding. If for any reason the class action waiver set forth above cannot be enforced as to some or all of the Dispute, then the agreement to arbitrate will not apply to that Dispute or portion thereof. Any Disputes covered by any deemed unenforceable class action waiver provision may only be litigated in a court of competent jurisdiction, but the remainder of the agreement to arbitrate will be binding and enforceable. For the avoidance of doubt, the parties do not agree to class arbitration or to the arbitration of any claims brought on behalf of others.

12. Miscellaneous. We reserve the right to modify these Terms of Service upon 90 days notice provided that such modifications shall apply only to Orders entered into thereafter. Headings and captions are used for convenience of reference only. These Terms of Service and each Order may be signed in separate, identical counterparts deemed to be one instrument. Except as otherwise stated, all notices must be sent by certified mail or reputable overnight courier to the address specified for each party and deemed given three business days after sending. Failures in performance beyond a party’s reasonable control are excused. Unenforceable provisions will be reformed to permit enforceability with maximum effect to the original intent. Waiver of a breach is not waiver of other or later breaches. Nothing in an Agreement is intended to create an agency, partnership, joint venture, or franchise between the parties and except as may be expressly stated in an Order, neither party has the authority to act in the name or on behalf of or otherwise to bind the other. In performing its obligations under each Agreement, each party is acting as an independent contractor of the other and is solely responsible for the supervision, daily direction, and control of its own employees and for the payment of their salaries and benefits and related compensation (including employer-source deductions). We may issue a press release or make other public announcements concerning these Terms of Service and/or Orders. We may use your name and logo externally in a manner consistent with your corporate communications policies (to the extent made available to us) but in all events reasonably. To the extent required by the licensors of Third Party Software and Data we provide, such licensors are the express, intended third party beneficiaries of each Agreement.

13. Entire Agreement and Survival. These Terms of Service and each Order are the entire agreement between the parties with respect to Capped Out Media and Services under them and supersede all previous or contemporaneous written and verbal agreements or proposals relating to the same subject matter and cannot be modified except by written agreement referencing the specific provisions modified. Conflicts between these Terms of Service and an Order with respect to amounts or timing of payments will be resolved in favor of the Order. All other conflicts will be resolved in favor of these Terms of Service. Purchase orders or similar documents issued by you or your agents are void and of no effect. If your procurement processes require use of an internal purchase order neither it nor its terms shall supersede, replace, or amend these Terms of Service. Sections 5, 8, 9, and those portions of Sections 6, 7.3, 9, 10, 11 and 13 that by their nature should survive, each shall survive termination or expiration of these Terms of Service.

14. Definitions and Interpretation. The word “including” is exemplary meaning “including without limitation” or “including, but not limited to.” The words “shall,” “will,” and “must” are obligatory and require performance of the stated condition, etc. The word “may” is intended to be permissive, imparting a right, but not an obligation, to perform. References to days mean calendar days unless otherwise indicated. This Section defines, in both their singular and plural forms, all capitalized terms used in these Terms of Service, other than those grammatically required to be capitalized.