Terms and Conditions

THE FOLLOWING TERMS AND CONDITIONS (collectively “Terms & Conditions”), are entered into by and between You, the customer (“Customer” or “you”), and Wireless Technology Solutions LLC, a Pennsylvania limited liability company (“Wireless Technology” or “Company”). These Terms & Conditions relate to Wireless Technology’s Payment Card Industry (“PCI”) compliance and IT solutions and services, as more fully set forth in the PCI Compliance Services Agreement of which these Terms & Conditions are explicitly made a thereof and are incorporated therein (collectively “Services”). Wireless Technology reserves the right to amend, update or otherwise modify these Terms & Conditions from time to time at Company’s sole discretion and without notice. By use of any Services, you accept and agree to all conditions imposed in these Terms & Conditions.

 ARTICLE 1 – DEFINITIONS

1.1          Meaning of Terms.  Terms used but not otherwise defined herein shall have their normal or common meaning, or as defined in the Payment Card Industry Data Security Standard (“PCI DSS”), as applicable:

(a)           Addendum:  Document, including any statement of work (“SOW”), which, when signed by both Parties, shall constitute part of the PCI Compliance Services Agreement (the Agreement”) and sets out the relevant details of the specific terms and conditions upon which the Services are provided by Wireless Technology to Customer.

(b)          Administrative Safeguards: Administrative actions, policies and procedures to manage the selection, development, implementation and maintenance of security measures to protect Cardholder Data and to manage the conduct of Customer’s workforce in relation to the protection of same.

(c)           Affiliate: An entity that controls, is controlled by, or is under common control with a Party.  “Control” means the ability to direct, directly or indirectly, the policies, management and operations of an entity through ownership of voting securities, by agreement or otherwise.

(d)          Agreement: The PCI Compliance Services Agreement, including all properly incorporated Addenda, Exhibits, Statements of Work (“SOW”), Service Orders, these Terms & Conditions, and other documents and/or Amendments made by the Parties and incorporated by reference in a signed writing, shall be referred to collectively as the “Agreement”.

(e)           Cardholder Data (CHD): Any personally identifiable data associated with a cardholder’s payment that is processed, stored, or transmitted by Customer. Examples include but are not limited to, primary account number, expiration date, card type, name, address, social security number, and card validation code.

(f)           Cardholder Data Environment (CDE): An interconnected set of information resources or systems under the direct management and control of Customer that store, process or transmit CHD or any system that provides security to a system that processes, stores or transmits CHD. A system normally includes hardware, software, information, data, applications, communication and people.

(g)          Confidential Information: “Confidential Information” shall include, but not be limited to, any and all proprietary information, technical information or data, computer programs, software, methodologies, innovations, software tools, know-how, knowledge, designs, drawings, specifications, concepts, data, reports, processes, techniques, documentation, pricing, marketing plans, customer and prospect lists, Cardholder Data, trade secrets, financial information, equipment, source code, hardware configuration, and any other information not available to the general public, whether written or oral, which the receiving Party knows or has reason to know qualifies as confidential for any purpose, such as maintaining a competitive advantage. These restrictions, however, will not apply to otherwise Confidential Information that has become known to the public generally through no fault or breach of the receiving Party or that the disclosing Party regularly gives to third parties without restriction on use or disclosure.

(h)          Equipment: All equipment provided by Wireless Technology to Customer under this Agreement.

(i)            Payment Card Industry Data Security Standard (PCI DSS): A baseline set of technical and operation requirements designed to protect CHD that are amended and released from time to time by the PCI SSC, defined below. PCI DSS applies to all entities involved in payment card processing – including merchants, processors, acquirers, issuers and service providers. PCI DSS also applies to all other entities that store, process or transmit CHD.

(j)            Payment Card Industry Security Standards Council (PCI SSC): The global forum for the ongoing development, enhancement, storage, dissemination and implementation of security standards for CHD protection.

(k)           Physical Safeguards: Physical measures, policies and procedures to protect Customer’s CDE and related buildings and equipment from natural and environmental hazards and unauthorized intrusion.

(l)            Security Safeguards: All of the Administrative, Physical and Technical Safeguards in the CDE.

(m)         Services: PCI DSS compliant solution (consisting of the applicable administration process, tools and reporting systems for such solution) as defined by the PCI SSC or other related service described in an Addendum, Service Order, or both.

(n)          Service Order:  The applicable form, available from Wireless Technology on which Customer shall order Service from Wireless Technology, which must be approved by Customer in order to be valid.

(o)          Software:  Any computer program, including any modifications, updates, or additions (but only to the extent that Wireless Technology has agreed to provide such modifications, updates or additions hereunder), provided by Wireless Technology which may be included in or with Equipment as object code, or in executable form in any medium, and related materials such as diagrams, manuals, firmware and other documentation which are for use in the Equipment provided to Customer.

(p)          Taxes: Amounts required by federal, state, local or foreign taxing authorities to be collected from Customer in connection with Services.  Taxes include, but are not limited to, personal property taxes on property used to provide Services and sales, use, receipts, telecommunications, excise, utility, or other similar transaction-based taxes, fees and surcharges, however designated, imposed directly on Services or Wireless Technology as a result of its provision of Services.  “Taxes” do not include any tax based on Wireless Technology’s net income, net worth, capital structure, or payroll.

(q)          Technical Safeguards: The technology and the policy and procedures for its use that protect CHD and control access thereto.

ARTICLE 2 – BILLING; PAYMENT

2.1          Billing and Payment Obligation.  Customer shall pay for PCI DSS compliance and other service programs as indicated in the SOW, as an ongoing, pro-rated quarterly charge throughout the Service Term, unless and except as otherwise provided therein. Wireless Technology shall issue invoices to Customer for annual recurring charges pro-rated on a quarterly basis (hereinafter, Quarterly Recurring Charges or “QRC”). Non -Recurring Charges (NRCs) shall be paid in full as set forth below, and shall not be pro-rated unless otherwise indicated in the SOW.  Customer shall pay all non-recurring charges (“NRC”) and QRC for Services without deduction or setoff within thirty (30) days of the date indicated on each invoice (“Payment Period”).

2.2          Late Payments.  Compounded interest at the rate of 1.0% (or the maximum allowed by law, if less) per quarterly billing period may be charged on invoiced charges not paid within the Payment Period. Customer shall be required to reimburse Wireless Technology for all reasonable costs incurred in connection with collection activities, including attorneys’ fees and court costs.

2.3          Remedies for Non-Payment.  If Customer fails to pay invoiced charges in accordance with the provisions of this Article, Wireless Technology may, in its sole discretion, do one or more of the following: (a) refuse to accept additional Service Orders; (b) suspend Services furnished under this Agreement or any other service agreement until Customer has paid all past due amounts owed, with interest; or (c) terminate the relevant Service Order and seek any remedies available at law, in equity or as provided in this Agreement for breach for non-payment. Failure of Wireless Technology to exercise any available option does not constitute a waiver, nor does exercise of any one preclude subsequent or concurrent exercise of any other.

ARTICLE 3 – DEFAULT

3.1          Events of Default.  A Party shall be in default under the Agreement if any of the following occurs: (a) Customer fails to comply with the payment terms of the Agreement; or (b) a Party fails to comply with a material term or condition of the Agreement, and the violation is not cured within ten (10) days of receipt of written notice of the violation.

3.2          Termination for Default.  In event of default of the Agreement pursuant to Article 5.1, the non-breaching Party may terminate the Agreement with immediate effect by providing the other Party with written Notice as set forth herein, in addition to any other remedies that may be available at law or in equity.

ARTICLE 4 – INDEMNIFICATION

4.1          Indemnity. Each Party shall indemnify, defend and hold harmless the other Party and its Affiliates, employees, directors, officers, and agents from and against any and all costs, expenses, including reasonable attorneys’ fees, damages, judgments, liabilities, suits, proceedings, or other claims, brought by an entity not a Party to or an Affiliate of a Party to the Agreement that arises out of: (a) a breach by such Party of its obligations, representations and warranties pursuant to the Agreement (except to the extent that such claim or suit is based on the other Party’s negligence or breach of its representations and warranties, or its other obligations under the Agreement); (b) the negligence or willful misconduct of such Party in performing its obligations under the Agreement; (c) breach of any applicable law by such Party; (d) property damage or personal injury (including death) which is the result of the gross negligence or willful act or omission of such Party in connection with the Services.

4.2          Procedure.  If a claim is made against Wireless Technology or Customer, the Party in receipt of the claim (“Indemnified Party”) will notify the other Party (“Indemnifying Party”) in writing no later than ten (10) days after learning of a potential claim.  If the Indemnifying Party has properly assumed defense of a claim, and proceeds to defend the claim in good faith, the Indemnified Party may not settle or compromise the claim without the Indemnifying Party’s prior written consent, which shall not be unreasonably withheld.  The Indemnified Party will provide assistance, information and authority reasonably requested to assist the Indemnifying Party.  Failure of the Indemnified Party to provide notification of a claim will not relieve the Indemnifying Party of its obligations under the Agreement except to the extent the delay prejudices the Indemnifying Party.

ARTICLE 5 – MISCELLANEOUS

5.1          Governing Law.  This Agreement will be governed by the laws of the Commonwealth of Pennsylvania without regard to choice of law principles. Any action arising out of or relating to this Agreement shall be resolved by binding arbitration, by one arbitrator, in accordance with the Commercial Arbitration Rules of the American Arbitration Association. The Parties hereby waive their right to a jury trial for all disputes between them.

5.2          Authorizations and Warranties.  All undertakings and obligations under this Agreement are subject to the obtaining and continuance of such approvals, consents, governmental authorizations, licenses and permits as may be required. The Parties will obtain and maintain such approvals, consents, authorizations, licenses and permits as required by applicable law.  Company and Wireless Technology each represent and warrant that (a) each party is duly organized and validly existing under the laws of the jurisdiction in which it is organized; (b) each party has the requisite corporate right, power and authority to enter into this Agreement; (c) each such party has, or shall license or acquire, all rights necessary to perform its obligations hereunder; and (d) that the execution of this Agreement by such party and the performance of such party of its obligations and duties hereunder do not, and will not, violate any other agreement to which the party may be bound.

5.3          Assignability.  Neither Party may assign, delegate, transfer or pledge its rights or obligations under this Agreement to a third party without the prior written consent of the other Party, such consent not to be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, in connection with a merger, acquisition, reorganization or sale of all or substantially all of a Party’s assets or stock to a third party, that Party may assign this Agreement effective upon providing at least thirty (30) days’ advance written notice to the other Party.

5.4          Intellectual Property.  Each Party retains all right, title and interest in and to any and all of its intellectual property. Nothing in this Agreement shall be construed in any manner to grant Customer any right, title, or interest in or to any Wireless Technology software, system, or other intellectual property and no license will be deemed to have been granted by either Party to any of its Intellectual Property Rights, except as otherwise expressly provided in this Agreement. Intellectual Property Rights shall mean all present and future patents, trademarks, service marks, design rights, database rights (whether or not registrable and whether or not registered), applications for any of the foregoing, copyright, know-how, trade secrets, and all other industrial or intellectual property rights or obligations, whether or not registrable or registered, in any country.

5.5          Survival. All provisions regarding indemnification, warranty, liability and limits thereon, and confidentiality and/or protections of proprietary information, rights and trade secrets, including but not limited to Sections 2.2, 7.4 and Article 6 hereof, shall survive the termination of this Agreement.

5.6          Interpretation.  This Agreement may not be construed or interpreted against either Customer or Wireless Technology because that Party drafted or caused its legal representative to draft any of its provisions.

5.7          Waiver.  No waiver of any provision in this Agreement will be binding unless in writing and signed by both Parties. The failure of a Party to insist on the strict enforcement of any provision of this Agreement shall not constitute a waiver of the provision and all terms of the Agreement will remain in full force and effect.

5.8          Signatures; Counterparts.  Any requirement for a signature in any document relating to this Agreement may be satisfied by a transmission via .pdf copy. This Agreement may be executed in counterparts (each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement) and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Party.

5.9          Entire Agreement.  This Agreement, including all exhibits, addenda and electronic terms and conditions, sets forth the entire understanding of the Parties and supersedes all written or oral prior or contemporaneous agreements, arrangements or understandings regarding the Services and/or Equipment.  The Addenda, Exhibits and other documents to which reference has been made are integrated into and shall form part of this Agreement.

5.10        Severability.  If any provision of this Agreement is found to be invalid or unenforceable under applicable law, it will be ineffective only to the extent of its invalidity and will not affect the remaining provisions in this Agreement.

THESE TERMS AND CONDITIONS, INCORPORATED INTO AND MADE A PART OF THE PCI COMPLIANCE SERVICES AGREEMENT INCLUDING ALL EXHIBITS AND ADDENDA, ARE AGREED TO BY THE PARTIES AND MADE EFFECTIVE ON THE DATE SET FORTH BELOW. 

BY EXECUTING THIS AGREEMENT, CUSTOMER IS AGREEING TO THESE TERMS AND CONDITIONS AS PART OF ITS PURCHASE OF PCI DSS COMPLIANCE ADVISORY SERVICES.