WSM Platform – Master Subscription Agreement

Congratulations on taking a step toward learning more about and optimizing your online advertising and pay per click (“PPC”) campaigns. We are delighted to have you as a valued White Shark Media Inc. customer! Please take the time to review this Master Subscription Agreement because it governs your access to, use and purchase of the Academy, AdInsights, Optimizer and other online advertising related tools and services (together, “WSM Offerings”) provided by White Shark Media Inc. (“WSM”). This Master Subscription Agreement was last updated on July 09th, 2019.


“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the outstanding voting interests of the subject entity.

“Agreement” means this Master Subscription Agreement, the WSM Privacy Policy and the WSM Website Terms of Use (defined in Section 2.5 below), and any Order Forms you enter into with WSM.

“Beta Service” means a product, data cuts, service, integration, or other feature that WSM makes available to you to try at your option at no additional charge, and is designated as beta, limited release, preview, non-production, or other similar description.

“Cloud Offerings” means the proprietary web-based products and services of WSM or its licensors identified on an Order Form and subsequently made available to you by WSM in accordance with this Agreement.

“Documentation” means the applicable training materials, user guides, and other similar information pertaining to a WSM Offering provided by WSM, which may be updated by WSM to include information about new features and
incorporate feedback to help WSM’s customers understand how to use WSM Offerings. If no Documentation exists for a particular WSM Offering used by you, then references in this Agreement to Documentation do not apply.

“Order Form” means WSM’s standard ordering document that identifies the WSM Offerings purchased by you and references this Agreement.

“Professional Services” means PPC management, onboarding, training, implementation, and other services
related to the WSM Offerings and identified on an Order Form. If no Professional Services exist for a particular WSM Offering used by you, then references in this Agreement to Professional Services do not apply.

“Service Data” means data and other information about your use of a WSM Offering (e.g., the number of reports run, the frequency of log-ins, and User behavioral data, but does not include Your Data loaded into a Cloud
Offering that can be linked to an individual (e.g. an individual’s name).

“Subscription Fee” means the periodic fee applicable to your subscription to a WSM Offering for the applicable Subscription Term, and excludes any one-time fees (e.g., implementation or onboarding fees), Professional Service fees, and any Taxes (defined in Section 6.3 below).

“Subscription Term” means the duration of your subscription to a WSM Offering as set forth on an Order Form and all Renewal Subscription Terms (defined in Section 5.1 below).

“Term” means the duration this Agreement is in effect as described in Section 5.1 below.

“User” means you and your Affiliates’ employees and contractors and consultants (together, your “Contractors”) that are authorized by you to use and access the WSM Offerings through your Account (defined in Section 2.1 below).

“WSM Data” means the data that’s provided and licensed by WSM (or its licensors) to you and accessible through a Cloud Offering or other means WSM makes available to its customers generally including, without limitation,
reports, analyses, summaries, courses, optimization guides, articles, and other information available on or through
the Cloud Offerings. WSM Data includes Aggregated Data (defined in Section 4.2 below).

“You” or “you” means the company entity identified on the Order Form (by its legal name or its other assumed, trade, or fictitious name) that purchased a WSM Offering pursuant to an Order Form or such company’s permitted successors or assigns.

“Your Data” means all information you or your Users load or otherwise input into the Cloud Offerings (or provide to WSM for loading or inputting into the Cloud Offerings on your behalf), and any information provided by you relating to your use of Professional Services.


2.1 Provision of Cloud Offerings and WSM Data. During the Subscription Term, WSM will provide you access to, and use of, the Cloud Offering that you subscribed to under the applicable Order Form by enabling an account for you to access through a web browser (“Account”). You will designate individuals authorized by you to manage, use, and support the Account, including, the creation of usernames and passwords for Users. You are solely responsible for maintaining the status of your Users and the confidentiality of all usernames, passwords, and other Account access information under their control. You will contact WSM promptly if: (a) Account information is lost, stolen, or disclosed to an unauthorized person; (b) you reasonably believes that the Account has been compromised, including, any unauthorized access, use, or disclosure of Account information; or (c) any other breach of security in relation to your passwords, usernames, or other Account access information that may have occurred or is likely to occur.

2.2 Permitted Use of WSM Offerings

(a) Access and Use of Cloud Offerings and WSM Data. During the Subscription Term and subject to the terms and conditions of this Agreement, WSM grants you a worldwide, non-transferable, non-assignable (except to the extent allowed under this Agreement), non-sublicenseable, and non-exclusive right to access and use the Cloud Offering, WSM Data (if applicable), and reports generated through your use of the Cloud Offering solely for your internal use, unless otherwise expressly allowed in this Agreement or a written agreement signed by authorized representatives of the parties.

(b) Your Contractors and Affiliates. You may allow your Contractors and Affiliates to serve as Users if: (i) you remain responsible for compliance by each such Contractor and Affiliate with all of the terms and conditions of this Agreement; and (ii) any use of the WSM Offerings by each such Contractor or Affiliate is solely for the benefit of you. An Affiliate may purchase WSM Offerings from WSM directly by entering into an Order Form with WSM that references this Agreement. In such instance, the Order Form between WSM and the Affiliate will be deemed a separate agreement between WSM and such Affiliate that incorporates the terms of this Agreement, such Affiliate will be interpreted as the “you” (as used in this Agreement), and you consent to WSM sharing a copy of this Agreement with such Affiliate.

2.3 Use Restrictions. Except as expressly allowed under this Agreement (including, Section 2.2 above), you will not: (a) permit any third party (other than Users) to access or use the WSM Offerings; (b) create derivative works based on the WSM Offerings; (c) copy, frame, or mirror any part or content of the WSM Offerings, other than copying or framing on your own intranet or otherwise for your own internal business purposes; (d) decompile, disassemble, translate, reverse engineer, or otherwise attempt to derive source code or specific data from the WSM Offerings, in whole or in part, nor will you use any mechanical, electronic, or other method to trace, decompile, disassemble, or identify the source code of, or specific data available through, the WSM Offerings or encourage or permit others to do so (except and only to the extent that applicable law prohibits or limits reverse engineering restrictions); (e) access or use the WSM Offerings to (i) develop or improve a competitive product or service, or (ii) copy any features, functions, content, format, graphics, modules, algorithms, arrangement, method of organization, method of interaction, or other design of the WSM Offerings for yourself, your Affiliates, or a third party; (f) sell, resell, rent, or lease the WSM Offerings; (g) use the WSM Offerings to store or transmit infringing, libelous, or other unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (h) store or transmit virus, malware, or other malicious or harmful code or files through the WSM Offerings; (i) interfere with or disrupt the integrity or performance of the WSM Offerings; (j) attempt to gain unauthorized access to WSM Offerings or their related systems or networks; or (k) disclose the results of any benchmarking or other performance testing of the WSM Offerings to a third party without WSM’s prior written consent.

2.4 Provision of Professional Services. Subject to the terms of this Agreement, WSM will provide you the Professional Services set forth in an Order Form. WSM’s performance of the Professional Services is contingent on you providing WSM all of Your Data (including, without limitation, your logins or administrative access to your ad manager accounts) as reasonably necessary for WSM to provide the Professional Services (including, without limitation, Your Data described in applicable Documentation) and your active and timely participation.

2.5 Website Terms of Use. Some WSM Offerings may be subject to operational and other use terms located at (“Website Terms of Use”), as applicable. The Website Terms of Use may be updated by WSM from time to time in our sole discretion to include additional WSM Offerings, new features, or reflect updated operational processes, but any such changes will not impose additional material obligations or liabilities on you (e.g., increase your then-current Subscription Fee when there’s no change in the scope of your subscription or include additional indemnity obligations on you), reduce a critical functionality of a Cloud Offering, or materially impact your use of the WSM Offerings, unless otherwise required by applicable law.

2.6 Beta Services. WSM may make Beta Services available to you. You may choose to try such Beta Services in your sole discretion. Beta Services are intended for evaluation purposes only and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “WSM Offerings” under this Agreement, but all restrictions, reservation of rights, your obligations concerning the WSM Offerings, and rights granted by you to WSM regarding Your Data will apply equally to your use of Beta Services. Unless otherwise agreed by the parties, use of Beta Services expire on the date a version of the Beta Services becomes generally available without the applicable Beta Service designation. WSM may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Beta Services are provided “AS IS” and WSM will have no liability for any harm or damage arising out of a Beta Service.


3.1 WSM Responsibilities. WSM will: (a) provide you its standard level of support for the WSM Offerings at no additional charge (or upgraded support if purchased separately); (b) use reasonable efforts to make the Cloud Offerings available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which WSM will make reasonable efforts to give at least 8 hours’ notice via your Account and which WSM will schedule to the extent practicable during the weekend hours from 6:00 p.m. Eastern time Friday to 3:00 a.m. Eastern time Monday); or (ii) any unavailability caused by your Internet service provider, telecommunications carrier, or other service provider that provides you services necessary to establish your connection or access to the Internet (together, “ISP Provider”) or a Force Majeure Event (defined in Section 12.6 below); (c) conduct its business in accordance with applicable laws; and (d) be responsible for the performance of our employees and contractors and their compliance with WSM’s obligations under this Agreement (including, confidentiality obligations).

3.2 Your Responsibilities. You will: (a) be responsible for Users’ compliance with this Agreement; (b) be responsible for procuring at your expense the necessary hardware (e.g., computers) and Internet connection needed to access the WSM Offerings; (c) be solely responsible for the accuracy and legality of Your Data, the means by which you acquired Your Data (including, collecting any required consents), and ensuring that your use of Your Data is compliant with applicable laws; (d) use reasonable efforts to prevent unauthorized access to, or use of, the WSM Offerings through your Account, and notify WSM promptly of any such unauthorized access or use; (e) provide assistance, information, data, and other resources reasonably necessary to enable WSM to perform and provide the WSM Offerings; and (f) use the WSM Offerings in accordance with applicable Documentation, this Agreement, and applicable laws (including, providing Your Data to WSM in a format consistent with the requirements set out in the applicable Website Terms of Use, Documentation, or specified by WSM or otherwise enabling access to your relevant advertising management accounts via login credentials or administrative access or otherwise (“Technical Requirements”)). Errors in loading Your Data into the applicable Cloud Offering due to your failure to meet Technical Requirements may impact your ability to use or access the applicable Cloud Offering and WSM shall not be responsible for such impact.


4.1 Your Data. As between WSM and you, you exclusively owns all rights, title, and interest in and to all Your Data. During the Term and subject to the terms of this Agreement, you grant to WSM a license and right to host, access, process, display, copy, transmit, modify, create derivative works of, and otherwise use Your Data solely to the extent necessary to: (a) fulfill our obligations to you under this Agreement; (b) maintain, evaluate, secure, develop, or improve the applicable WSM Offering provided or used by you (e.g., develop enhanced Cloud Offering features); (c) invoice you amounts due under this Agreement; and (d) respond to and resolve a User’s request for customer support. Nothing in this Agreement transfers or conveys to WSM any ownership interest in or to Your Data and Your Data remains your property and Confidential Information.

4.2 Aggregated Data. Without limiting the generality of Section 4.1, WSM may aggregate Your Data with other customer data (“Aggregated Data”) for use by WSM in accordance with WSM’s privacy policy located at

4.3 Service Data. Notwithstanding anything to the contrary herein, you agree that WSM may collect Service Data, and WSM may use Service Data to develop, improve, support, and operate its products and services during and after the Term of this Agreement. This Section 4.3 does not give WSM the right to identify you as the source of any Service Data without written permission from you.

4.4 Reservation of Rights; Suggestions. Except as expressly granted to you under this Agreement, WSM and its licensors and service providers reserve all intellectual property and other proprietary rights in and to the WSM Offerings (including, WSM Data) (and any modifications thereto or derivative works thereof), including, all underlying software, source code, data, design, modules, organization, format, algorithm, and other technology. Nothing in this Agreement transfers or conveys to you any ownership interest in or to the WSM Offerings and the WSM Offerings remain WSM’s or its licensors’ property. Trademarks and logos used in connection with WSM Offerings are the trademarks of their respective owners. WSM and other WSM trademarks, service marks, graphics, and logos used for the WSM Offerings are trademarks or registered trademarks of WSM. You hereby grant to WSM a royalty-free, worldwide, transferable, sublicensable, irrevocable, and perpetual license to use or incorporate into any WSM Offering any suggestions, enhancement requests, recommendations, or other feedback provided by you or your Users relating to the WSM Offerings.


5.1 Term; Auto-Renewal. The Term starts on the date you agree to your first Order Form and continues until all Order Forms have expired or have been terminated as allowed under this Agreement. Your Subscription Term to the WSM Offerings are set forth in the applicable Order Form. Except as otherwise specified in an Order Form, at the end of the then-current Subscription Term, your subscription to a WSM Offering will automatically renew for the shorter of (a) the same period agreed upon in the applicable Order Form, and (b) three years (each a “Renewal Subscription Term”) at WSM’s then-current list price unless: (i) you provide written notice of non-renewal to WSM at least 30 days before the start of a Renewal Subscription Term; or (ii) WSM provides written notice of non-renewal to you at least 60 days before the start of a Renewal Subscription Term.

5.2 Termination. A party may terminate this Agreement (and all Order Forms) or a specific Order Form by written notice to the other party if the other party breaches its material obligation under this Agreement, and, if the breach is capable of cure, fails to cure the breach within 30 days after the notice is sent (such notice must include specific detail of the breach). If you terminate this Agreement or an Order Form due to WSM’s breach in accordance with this Section 5.2, then WSM will refund you the prepaid Subscription Fee applicable to the remainder of the terminated Cloud Offering’s Subscription Term, prorated from the effective date of termination and you will not be liable for paying fees due for the unused portion of the terminated Cloud Offering’s Subscription Term. If WSM terminates this Agreement or an Order Form due to your breach in accordance with this Section 5.2, WSM will not refund any amounts paid by you and you remain liable for payment of amounts due under this Agreement. In addition to the foregoing termination rights, either party may terminate this Agreement and/or any Order Form for any reason or no reason upon ninety (90) days prior written notice to the other party.

5.3 Effects of Termination. Upon expiration or termination of this Agreement for any reason: (a) any amounts owed to WSM under an Order Form before such termination or expiration will be immediately due and payable except as provided in Section 5.2 above; (b) you must discontinue all access and use of the Cloud Offerings and promptly delete all copies of Documentation in your possession; and (c) WSM will discontinue providing you the WSM Offerings and you will lose access to the Account. All provisions that by their nature should survive termination or expiration will do so (including, payment obligations, limitation of liability, and duties of confidentiality, but, for clarification, not indemnity obligations). At any time during the Subscription Term, you may export Your Data then-stored in the Cloud Offering in accordance with the capabilities of the Cloud Offering. For up to 30 days after the end of a Subscription Term, following your written request, WSM will grant you access to your Account for the sole purpose of exporting the Your Data then-stored in the Cloud Offering; provided, that, (i) if any assistance is required by you from WSM, you will pay WSM its then-current rates for such assistance, and (ii) following such 30-day period, WSM is not obligated to retain a copy of Your Data then-stored in the Cloud Offering and may delete Your Data in accordance with its deletion policies and procedures, and you hereby consent to any such deletion.


6.1 Fees. You will pay all fees specified in Order Forms. Except as otherwise provided in this Agreement or in an Order Form: (a) fees are based on WSM Offerings purchased and not actual usage; (b) fees are quoted in United States dollars; and (c) payment obligations are non-cancelable and, except as expressly provided hereunder, fees paid are non-refundable.

6.2 Invoicing and Payment. Unless otherwise expressly agreed upon in an Order Form: (a) Subscriptions Fees will be invoiced in full and in advance; and (b) for other amounts due to WSM under this Agreement, WSM will invoice you in advance and in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due 15 days after the invoice date. You will provide WSM complete and accurate billing and contact information and will notify WSM of any changes to such information. Unless otherwise specified in an Order Form, WSM will automatically charge your payment information on file for any renewals, upgrades, overage fees, and additional WSM Offerings purchased. If any invoiced amount is not received by WSM by the due date, then without limiting WSM’s rights or remedies, (i)  (i) WSM may suspend your access to the Cloud Offerings and providing any Professional Services, and (ii) WSM may condition future purchases on payment terms shorter than those specified in this Agreement. WSM will not exercise its rights under this Section 6.2 if you are disputing applicable fees reasonably and in good faith and are cooperating with WSM to diligently resolve the dispute.

6.3 Taxes. You are responsible for any applicable taxes, including, sales, use, levies, duties, or any value added or similar taxes (collectively, “Taxes”) payable with respect to your order or use of WSM Offerings assessable by any local, state, provincial, federal, or foreign jurisdiction. Unless expressly specified otherwise in any Order Form, all fees, rates and estimates exclude Taxes. WSM is solely responsible for taxes based upon WSM’s net income, assets, payroll, property, and employees.


7.1 Meaning of Confidential Information. As used in this Agreement, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data, with the exception of the portion of Aggregated Data that includes Your Data in a de-identified and anonymized form as permitted under this Agreement. WSM’s Confidential Information includes the WSM Offerings (e.g., WSM Data and the user interface and format of a Cloud Offering) and Documentation. Confidential Information of each party will include all Order Forms, as well as business plans, technical information, product plans and designs, WSM content accessible through the WSM Offerings and business information and processes disclosed by such party. However, Confidential Information will not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.

7.2 Standard of Care. Except as otherwise permitted in writing by Disclosing Party, Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own Confidential Information of like kind (but in no event less than reasonable care), (b) not disclose or use any Confidential Information of Disclosing Party for any purpose outside the scope of this Agreement, and (c) limit access to Confidential Information of Disclosing Party to those of its employees, contractors, advisors, and agents with a need to know or who need access for purposes consistent with this Agreement and who are bound by confidentiality obligations at least as stringent to those in this Agreement.

7.3 Other Terms. You acknowledge that WSM does not desire to receive any of Your Data or other Confidential Information that is not necessary for WSM to perform its obligations under this Agreement, including, sensitive personal information such as social security numbers or other government identifiers, credit card numbers, bank account numbers, and protected health information. The parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both parties prior to such disclosure or is included in a filing required to be made by a party with a governmental authority (provided that such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirors.


8.1 General Requirements. WSM will maintain appropriate administrative, physical, and technical safeguards designed for the protection of the security and integrity of Your Data. WSM will promptly notify you after WSM becomes aware of (and has confirmed) an incident of unauthorized access to Your Data under WSM’s control and possession.  Each party will reasonably cooperate with the other with respect to the investigation and mitigation of any such unauthorized access.  Upon confirmation of any vulnerability or breach of WSM’s security, WSM will modify its processes and security program as necessary to remediate the vulnerability or breach at WSM’s expense.

8.2 Data Storage. You understands and agrees that: (a) the Cloud Offerings host, process, and otherwise store Your Data on servers located in the United States; and (b) WSM may use the cloud infrastructure of third party providers for its Cloud Offerings if such providers meet or exceed the safeguards for the protection and security of Your Data agreed upon by WSM under this Agreement. Except with respect to the non-identifiable portions of Your Data incorporated into the Aggregated Data, Your Data will be separated (logically or through other technical means such that other Cloud Offering users cannot access Your Data loaded within such Cloud Offering) from the data of WSM’s other customers.


9.1 Mutual Warranties. Each party warrants to the other party that: (a) it has the authority to enter into this Agreement and perform its obligations under this Agreement; (b) this Agreement does not conflict with any other
agreement it is subject to and bound by; and (c) it does not conduct business for any unlawful purpose.

9.2 WSM Warranties. WSM warrants to you for your benefit only that: (a) the Cloud Offerings will perform materially in accordance with then-current and applicable Website Terms of Use and Documentation so long as you uses the Cloud Offerings in accordance with this Agreement (including, Technical Requirements) and for the limited purpose allowed under this Agreement; and (b) Professional Services will be performed in a professional manner in accordance with this Agreement. For any breach of the foregoing subsection (a), your sole and exclusive remedy will be for WSM to correct the defect in the Cloud Offerings. If WSM does not attempt to correct a material defect or otherwise provide a workaround within 30 days of you notifying WSM of the defect, then you may terminate the applicable Order Form for material breach in accordance with Section 5.2 above. You acknowledge that Cloud Offerings are subscription-based and that to deliver an improved customer experience, WSM may make changes to Cloud Offerings. In such event, WSM will update any applicable Website Terms of Use and Documentation accordingly. WSM does not warrant that the WSM Offerings (including, WSM Data) are accurate and free from all defects or errors.

9.3 Your Warranties. You warrant to WSM that: (a) you possess all necessary licenses, permissions, and other rights in and to Your Data to grant to WSM the license and rights to Your Data as expressly granted in this Agreement (including, to allow you, your users, and WSM (on your behalf) to load, store, and process Your Data into a Cloud Offering); and (b) the billing information you provide to WSM is accurate, current, and complete.

9.4 Disclaimers. You acknowledge that: (a) the WSM Data is for general information only; and (b) WSM has no control over how or if you choose to use the WSM Offerings and apply the data and other information procured from your use of the WSM Offerings.  WSM and its licensors do not warrant the access or use of the WSM Data in any specific situation or for any specific application, nor do they warrant that the WSM Data accessible through a Cloud Offering will be accessible at all times or that it will be error free or will produce specific results. You acknowledge that WSM provides the WSM Offerings to its customers to permit them to make independent decisions regarding online advertising effectiveness. Except as expressly provided in this Agreement, to the maximum extent allowed under applicable law, the WSM Offerings (including, WSM Data) are provided “AS IS” and “AS AVAILABLE,” and neither party makes any warranties of any kind, whether express, implied, statutory or otherwise, and each party specifically disclaims all implied warranties, including, any implied warranties of merchantability, fitness for a particular purpose, or any warranties arising during course of performance.


10.1 Indemnification by WSM. Subject to the terms and conditions set out in this Section 10, at its expense, WSM will defend and hold harmless you against any third party claim (which, for purposes of this Agreement, is a claim brought by a party that is not a party to this Agreement or an Affiliate of a party to this Agreement) (“Third
Party Claim”) brought against you arising from (a) an allegation that the Cloud Offerings or WSM Data infringes or misappropriates such third party’s patent, copyright, or other intellectual property right (“Infringement Claim”), or
(b) WSM’s use of Your Data in breach of Section 4 of this Agreement, and indemnify you from the resulting costs and damages awarded against you to the third party raising such Third Party Claim by a court of competent jurisdiction or agreed to in settlement. If a Cloud Offering is subject to an Infringement Claim and as a result, your use of the Cloud Offering is enjoined, then WSM will, at no cost to you, procure for you the right to continue using the WSM Offering or replace the WSM Offering with a non-infringing or modified WSM Offering of materially equivalent functionality. If none of the foregoing options are available on terms that are commercially reasonable for WSM, then WSM may terminate your right to access and use the WSM Offering subject to the Infringement Claim, and WSM will refund you any prepaid Subscription Fees applicable to such WSM Offering for the unused portion of such WSM Offering’s Subscription Term, prorated from the effective date of termination. WSM’s obligations under this Section 10.1 with respect to any Third Party Claims will be comparatively reduced to the extent the Third Party Claim results from: (i) Your Data if used by WSM in accordance with this Agreement; (ii) any modification made to a WSM Offering by you, your users, or a party other than WSM (or WSM’s contractors) if the Third Party Claim would have been avoided in the absence of such modification; (iii) the combination of a WSM Offering with other products not originally embodied in the WSM Offering as delivered by WSM if such infringement would have been avoided by not combining with such products; (iv) your use of a WSM Offering in breach of this Agreement; or (v) your negligence or willful misconduct.

10.2 Indemnification by you. Subject to the terms and conditions set out in this Section 10, at its expense, you will defend and hold harmless WSM against any Third Party Claim brought against WSM arising from (a) an
allegation that all or any part of the Your Data infringes, misappropriates, or violates the intellectual property,
privacy, or other proprietary or legal right of such third party, (b) your use of a WSM Offering in breach of this
Agreement, or (c) your use of the WSM Data, and indemnify WSM from the resulting costs and damages awarded against WSM to the third party raising such Third Party Claim by a court of competent jurisdiction or agreed to in settlement. Your obligations under this Section 10.2 with respect to any Third Party Claims will be comparatively reduced to the extent the Third Party Claim results from: (i) WSM’s use of Your Data in breach of this Agreement; or (ii) WSM’s negligence or willful misconduct.

10.3 Process for Tendering Claims. The obligations of a party (“Indemnitor”) to defend and indemnify the other (“Indemnitee”) under this Agreement are subject to the following: (a) Indemnitee must promptly inform Indemnitor in writing of any Third Party Claim within the scope of Indemnitor’s defense or indemnity obligations set
forth in this Agreement, provided that Indemnitor will not be excused from its indemnity obligations for failure to provide prompt notice except to the extent that Indemnitor is prejudiced by any such failure to provide prompt notice; (b) Indemnitor will be given exclusive control of the defense of such Third Party Claim and all negotiations relating to the settlement thereof (except that Indemnitor may not make any admissions on Indemnitee’s behalf or settle any such Third Party Claim unless the settlement unconditionally releases Indemnitee of all liability); and (c) Indemnitee must reasonably assist Indemnitor in all necessary respects in connection with the defense of the Third Party Claim at Indemnitor’s expense. Indemnitor’s obligations under this Section 10 will be limited to the extent to which a court of final jurisdiction finds that Indemnitee contributed to the Third Party Claim. If Indemnitee elects to participate in the defense of a Third Party Claim that Indemnitor is defending per this Section 10, then such defense shall be at Indemnitee’s sole cost and expense. Unless otherwise provided in the Website Terms of Use, this Section 10 states Indemnitor’s sole liability, and Indemnitee’s exclusive remedy, with respect to the type of Third Party Claims described in this Agreement.



11.2 Exclusions to Limitation of Liability; Limitation of Claims. The limitations set out in Section 11.1 above do not apply to: (a) amounts incurred by a party acting as an Indemnitor under Section 10 above or the Website Terms of Use; (b) your obligation to pay amounts due under this Agreement; (c) your use of a WSM Offering in violation of Sections 2.2 or 2.3 above; or (d) actual and proven damages arising from the other party’s willful misconduct or gross negligence. Except with respect to claims of infringement or misappropriation of intellectual property or your failure to pay amounts due under this Agreement, neither party may bring any claim against the other relating to this Agreement more than two years after the events giving rise to the claim occurred.


12.1 General Announcements; Legal Notices. WSM may send announcements of general interests by email or by posting on its website or through your Account, such as notices of new features or upcoming events. Notices to you will be sent to your designated contact information and you will immediately notify WSM if your contact information changes. WSM will provide you with legal notices by email, mail, or courier to the address provided by you. All legal notices to WSM must be in writing and mailed to the address of WSM’s corporate headquarters listed on, to the attention of the Legal Notices and with a copy emailed to

12.2 Governing Law; Jurisdiction and Venue. This Agreement is governed by the laws of the State of Florida, without regard to conflicts of laws provisions thereof. The jurisdiction and venue for actions related to this
Agreement or the subject matter hereof will be the courts located in Miami, Florida, and both parties irrevocably consent to such personal jurisdiction of such courts and waive all objections thereto.

12.3 Assignment. Neither party may transfer or assign this Agreement, or any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld); except that a party may assign this Agreement in its entirety without the other party’s consent to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business or assets not involving a direct competitor of the non-assigning party. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties’ respective successors and permitted assigns.

12.4 Customer Referral. You agree that WSM may identify you as a WSM customer in or on WSM’s demonstrations, website, or other promotional materials. WSM’s use of your name and logo will be in accordance with any guidelines provided by you. Upon your written request, WSM will promptly remove your name or any of your marks from WSM’s website, and to the extent feasible, WSM’s marketing materials.

12.5 Remedies; Severability. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action. Each party acknowledges that damages may be an inadequate remedy if the other party violates its obligations under this Agreement, and each party has the right, in addition to any other rights it may have, to seek injunctive relief without any obligation to post any bond or similar security. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right. Other than as expressly stated in this Agreement, the remedies provided in this Agreement are in addition to, and not exclusive of, any other remedies of a party at law or in equity. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be modified by the court and interpreted to best accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect.

12.6 Force Majeure. A party’s performance of any part of this Agreement (except your payment obligations) will be excused to the extent that it is unable to perform due to natural disasters, terrorism, riots, insurrection, war, extraordinary governmental action, ISP Provider failures or delays, or any other cause which is beyond the reasonable control of such party (“Affected Party”), not avoidable by reasonable due diligence, and not caused by the Affected Party (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the Affected Party will promptly notify the other party of the Force Majeure Event, including an estimate of its expected duration and probable impact on the performance of the Affected Party’s obligations under this Agreement. In addition, the Affected Party will (a) exercise commercially reasonable efforts to mitigate damages to the other party and to overcome the Force Majeure Event, and (b) continue to perform its obligations under this Agreement to the extent it is able.

12.7 Third Party Applications and Services. you agrees that WSM isn’t responsible for applications, services, software, or other products supplied by a third party (excluding WSM’s licensors and contractors) (each a “Third Party Service”) that you chooses to use with or integrate with the WSM Offerings, even if such Third Party Service interoperates with a WSM Offering. Use of a Third Party Service is subject to the terms and conditions of the provider of the Third Party Service.

12.8 Export Compliance. Each party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the WSM Offerings. Without limiting the foregoing, (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (b) you will not permit Users to access or use the WSM Offerings in violation of any U.S. export embargo, prohibition, or restriction.

12.9 Government End Use Provisions; Limited Waiver of Sovereign Immunity. WSM provides the WSM Offerings, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the WSM Offerings include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with WSM to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement. If you have sovereign immunity, you hereby irrevocably and unequivocally waive your sovereign immunity for the limited purpose of enforcing the terms of this Agreement, and you represent and warrant to WSM that you have procured all necessary consents to grant this waiver.  This limited waiver of sovereign immunity includes any action for money damages, injunctive relief, or declaratory relief.  You agree that you will not raise sovereign immunity as a defense in any action brought by WSM to enforce this provision.

12.10 Miscellaneous. WSM may use the services of subcontractors and permit them to exercise the rights
granted to WSM under this Agreement to provide the applicable WSM Offering if WSM remains responsible for (a) compliance of any such subcontractor with the terms of this Agreement, and (b) the overall performance of the WSM Offering as required under this Agreement. Except as otherwise provided in this Agreement, there are no third party beneficiaries under this Agreement. Any claims against WSM or its Affiliates under this Agreement may only be brought by the entity that is a party to this Agreement. Lists of examples following “including,” “e.g.,” or the like are interpreted to include “without limitation,” unless qualified by words such as “only” or “solely.” The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent. You agree that your purchases of all WSM Offerings under this Agreement are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by WSM regarding future functionality or features.

12.11 Entire Agreement. This Agreement, any agency agreement you have with WSM, and the policies referenced herein constitute the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment, or waiver is to be asserted. If there’s a direct conflict between provisions in this Agreement, the conflict will be resolved by giving precedence to the provision as it appears in the highest-ranked document in the following order: (a) the relevant Order Form; (b) applicable Website Terms of Use; (c) the agency agreement you have with WSM, if applicable; and (d) the body of this Agreement. No terms or conditions included (i) in any purchase order or order documentation (excluding Order Forms) provided by you to WSM, or (ii) with your vendor set-up process will be incorporated into, or form any part of, this Agreement, and all such terms or conditions are null and void even if such terms or conditions are accepted by WSM or WSM accepts payment from you.