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In addition, we reserve the right to schedule, from time to time, interruptions of
<br />service for maintenance activities.
<br />• Suspension of Wireless Services. We or a Wireless Network may suspend the
<br />Wireless Services to: (a) prevent damages to, or degradation of, our or a Wireless
<br />Network's network integrity that may be caused by a third party; (b) comply with
<br />any law, regulation, court order or other governmental request which requires
<br />immediate action; or (c) otherwise protect us or a Wireless Network from potential
<br />legal liability. To the extent commercially reasonable, we shall give notice to you
<br />before suspending the Wireless Services to you. If not commercially reasonable to
<br />give prior notice, we will give notice to you as soon as commercially practicable
<br />thereafter. Availability of the Wireless Services may vary due to events beyond the
<br />control of us or our Wireless Vendors. In the event of a suspension of the Wireless
<br />Services, we or the applicable Wireless Vendor will promptly restore the Wireless
<br />Services after the event giving rise to the suspension has been resolved.
<br />37.2. Software Licenses. Processor hereby grants to you a non-exclusive, non-
<br />transferable, revocable limited sublicense to use any wireless software (including
<br />any documentation relating to or describing the wireless software) downloaded by
<br />you or your designee from Processor's systems onto the Wireless Equipment in
<br />connection with your purchase and use of the Wireless Services in accordance with
<br />the terms of this Agreement, including this Section 37. Anything in this Agreement to
<br />the contrary notwithstanding, we or certain third parties retain all ownership and
<br />copyright interest in and to all Wireless Software, related documentation,
<br />technology, know-how and processes embodied in or provided in connection with
<br />the Wireless Software, and you shall have only a nonexclusive, non -transferable
<br />license to use the Wireless Software in your operation of the Wireless Equipment for
<br />the purposes set forth in this Agreement. Nothing in this Agreement confers any title
<br />or ownership of any such Wireless Software to you or shall be construed as a sale
<br />of any rights in any such Wireless Software to you. You agree to accept, agree to
<br />and be bound by all applicable terms and conditions of use and other license terms
<br />applicable to such Wireless Software. You shall not reverse engineer, disassemble
<br />or decompile the Wireless Software. You shall not give any Person access to the
<br />Wireless Software without our prior written consent. Your obligations under this
<br />Section 37.2 shall survive the termination of this Agreement. You acknowledge that
<br />the only right you obtain to the Wireless Software is the right to use the Wireless
<br />Software in accordance with the terms in this Section.
<br />37.3. Limitation on Liability. We shall have no liability for any warranties by any
<br />party with respect to uninterrupted Wireless Services, as set forth in Section 37.10,
<br />or for any Person's unauthorized access to Client's data transmitted through either
<br />the Wireless Equipment or Wireless Services (including the Wireless Software), or
<br />Wireless Networks, regardless of the form of action (whether in contract, tort
<br />(including negligence), strict liability or otherwise). The foregoing notwithstanding,
<br />for any other liability arising out of or in any way connected with these Wireless
<br />Services terms, including liability resulting solely from loss or damage caused by
<br />partial or total failure, delay or nonperformance of the Wireless Services or relating
<br />to or arising from your use of or inability to use the Wireless Services, Processor's,
<br />Bank's, and Wireless Vendor(s)' liability shall be limited to your direct damages, if
<br />any, and, in any event, shall not exceed the lesser of the amount paid by you for the
<br />particular Wireless Services during any period of failure, delay, or nonperformance
<br />of the Wireless Services or $50,000.00. In no event shall Servicers, Wireless Vendor
<br />(s) or our respective Affiliates be liable for any indirect incidental, special,
<br />consequential or punitive damages. The remedies available to you under these
<br />Wireless Services Terms will be your sole and exclusive remedies with respect to
<br />the Wireless Services.
<br />37.4. Indemnification. In addition to any other indemnifications as set forth in this
<br />Agreement, you will indemnify and hold Servicers, Wireless Vendor(s) and our
<br />respective officers, directors, employees, and Affiliates harmless from and against
<br />any and all losses, claims, liabilities, damages, costs or expenses arising from or
<br />related to: (a) the purchase, delivery, acceptance, rejection, ownership, possession,
<br />use condition, liens against, or, return of the Wireless Equipment or the Wireless
<br />Equipment (including the Wireless Software), as applicable; (b) your negligent acts
<br />or omissions; (c) any breach by you of any of your obligations under this Section 37;
<br />or (d) any Person's unauthorized access to Client's data and/or unauthorized
<br />financial activity occurring on..your Merchant Identification Number hereunder,
<br />except to the extent any losses, liabilities, damages or expenses result from our
<br />gross negligence or willful misconduct.
<br />37.5. Confidentiality. All information or materials which could reasonably be
<br />considered confidential or competitively sensitive that you access from or relate to
<br />either Wireless Vendor(s) or Servicers related to the subject matter of these
<br />Wireless Services Terms will be considered confidential information. You will
<br />safeguard our confidential information with at least the same degree of care and
<br />security that you use for your confidential information, but not less than reasonable
<br />care.
<br />37.6. Termination. In addition to any other provision in this Agreement, the Wireless
<br />Services being provided under this Section 37 may terminate:
<br />a) Immediately upon termination of the agreement between us (or our Affiliates) and
<br />Wireless Vendor(s), provided that we will notify you promptly upon our notice or
<br />knowledge of termination of such agreement, provided further that if Wireless Vendor
<br />(s) loses its authority to operate less than all of the Wireless Services or if the
<br />suspension of any authority or non -renewal of any license relates to less than all of
<br />the Wireless Services, then these Wireless Services Terms will terminate only as to
<br />the portion of the Wireless Services affected by such loss of authority, suspension
<br />or non- renewal; or
<br />A TRUE COPY
<br />CERTIFICATION ON LAST PAGE
<br />J.R. SMITH, CLERK
<br />b) Immediately if either we or our Affiliates or Wireless Vendor(s) are prevented from
<br />providing the Wireless Services by any law, regulation, requirement, ruling or notice
<br />issued in any form whatsoever by judicial or governmental authority (including
<br />without limitation the FCC).
<br />37.7. Effect of Termination. Upon termination of these Wireless Services Terms for
<br />any reason, you will immediately pay to us all fees due and owing to us hereunder.
<br />If these Wireless Services terms terminate due to a termination of the agreement
<br />between us or our Affiliates and Wireless Vendor(s), then we may, in our sole
<br />discretion, continue to provide the Wireless Services through Wireless Vendor(s) to
<br />you for a period of time to be determined as long as you continue to make timely
<br />payment of fees due under these Wireless Services Terms.
<br />37.8. Third Party Beneficiaries. Wireless Vendor(s) are third party beneficiaries of
<br />these Wireless Services Terms and may enforce its provisions as if a party hereto.
<br />37.9. Other Applicable Provisions. You also agree to be bound by all other terms
<br />and conditions of this Agreement.
<br />37.10. Disclaimer. Wireless Services use radio transmissions, so Wireless Services
<br />can't be provided unless your Wireless Equipment is in the range of one of the
<br />available Wireless Networks' transmission sites and there is sufficient network
<br />capacity available at that moment. There are places, particularly in remote areas,
<br />with no service at all. Weather, topography, buildings, your Wireless Equipment, and
<br />other conditions we don't control may also cause failed transmissions or other
<br />problems. PROCESSOR, BANK, AND WIRELESS VENDOR(S) DISCLAIM ALL
<br />REPRESENTATIONS AND WARRANTIES RELATING TO WIRELESS SERVICES.
<br />WE CANNOT PROMISE UNINTERRUPTED OR ERROR -FREE WIRELESS
<br />SERVICE AND DO NOT AUTHORIZE ANYONE TO MAKE ANY WARRANTIES
<br />ON OUR BEHALF.
<br />38. Special Provisions Regarding Clover Security Plus
<br />Clover Security Plus consists of a POS security monitor, the TransArmor Data
<br />Protection service, and tools that you can use to help you meet your PCI DSS
<br />compliance obligations. Each of these services is described in more detail below.
<br />Clover Security Plus is provided to you by Processor and not by Bank. Clover
<br />Security Plus is available only for Level 3 and Level 4 merchants, as defined by the
<br />Payments Organizations. Clover Security Plus is not available for Level 1 or Level 2
<br />merchants.
<br />38.1. The POS security monitor offers you monitoring, scanning, and anti-virus
<br />software services for your point of sale computer systems. The TransArmor Data
<br />Protection service is described in Sections 38.14 and 38.15.
<br />38.2. Scanning Authority; Scanning Obligations. You represent and warrant that
<br />you have full right, power, and authority to consent for Clover Security Plus to scan
<br />for vulnerabilities in the IP address and/or URL and/or domain names identified to
<br />us by you for scanning, whether electronically or by any other means, whether
<br />during initial enrollment or thereafter. If applicable, you shall obtain all consents and
<br />authorizations from any third parties necessary for us or our vendors to perform the
<br />Clover Security Plus services, including, without limitation, third party data centers,
<br />co -locations and hosts. We will not be required to execute agreements with any
<br />such third parties. You agree to defend, indemnify and hold us and our vendors
<br />harmless from any third party claim that such access was not authorized. You may
<br />use Clover Security Plus and portals only to scan IP addresses, URLs and domain
<br />names owned by and registered to you. You understand that your failure to provide
<br />a complete list of and complete access to your IP addresses will significantly impair
<br />the scanning services and may result in incomplete or inaccurate results. You agree
<br />that the Clover Security Plus services hereunder, including without limitation their
<br />functionality and contents, constitute confidential information, and your use and/or
<br />access to the Clover Security Plus is subject to the terms of confidentiality set forth
<br />in this Agreement.
<br />38.3. Data Collection. In the course of providing the Clover Security Plus, we may
<br />collect information relating to activities on your network (the "Data") including, but
<br />not limited to: network configuration, TCP/IP packet headers and contents, log files,
<br />malicious codes, and Trojan horses. We retain the right to use the Data or
<br />aggregations thereof for any reasonable purpose.
<br />38.4. Data Protection; Responsibilities of Client. Data Protection applies only to
<br />card transactions sent from you to us for authorization and settlement pursuant to
<br />the Agreement, and specifically excludes electronic check transactions. You are
<br />responsible to comply with the following regarding your use of Data Protection:
<br />a) Data Protection can only be used with an eligible POS device, gateway,
<br />interactive voice response system, or similar system or equipment sale device,
<br />gateway, that is certified by us for use with Data Protection. If you are uncertain
<br />whether your equipment is eligible or certified, please contact us. It is your
<br />responsibility to ensure that you have eligible equipment in order to use Data
<br />Protection.
<br />b) You must demonstrate and maintain your current PCI DSS compliance
<br />certification. Compliance must be validated either by a Qualified Security Assessor
<br />(QSA) with corresponding Report on Compliance (ROC) or by successful
<br />completion of the applicable PCI DSS Self -Assessment Questionnaire (SAQ) or
<br />Report on Compliance (ROC), as applicable, and if applicable to your business,
<br />passing quarterly network scans performed by an Approved Scan Vendor, all in
<br />accordance with card organization rules and PCI DSS. Use of the Data Protection
<br />will not, on its own, cause you to be compliant or eliminate your obligations to
<br />comply with PCI DSS or any other Card
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