TERMS AND CONDITIONS

P1 SERVICES

1. Services – Choice Solutions, L.L.C. (“Choice”, “us”, “we”) will, subject to these Terms and Conditions (“Terms”), provide P1 services to the organization identified in the applicable ticket (“Customer”) as requested in such ticket. Providing P1 services means we will work on the ticket with an estimated response time of 1 business hour and an estimated resolution time within 48 hours once the problem is reproducible or the defect is identified.
2. Billed Hours
   1. Default Billing – Unless described in 2.b., 2.c., or 2.d., below, P1 services shall be (i) on a time and materials basis per Choice’s then-current general rates and terms, and (ii) with a minimum billed amount of 4 hours for remote support and 8 hours for on-site support; provided further that any P1 services performed Monday through Friday before 7:00 am or after 7:00 pm shall be billed at a rate of 1.5 hours per hour, and any P1 services performed on Saturday or Sunday shall be billed at a rate of 2 hours per hour (all times Central).
   2. Time Block Customers – Customers with an active time block will have P1 services billed against such time block to the extent it indicates a minimum billed hour amount. If the time block does not indicate a minimum billed hour amount, then 2.a. shall control. To the extent necessary under this paragraph, the Terms shall be deemed to modify and/or amend the time block for the provision of P1 services.
   3. Managed Services Customers – For managed services Customers, P1 services within the scope of the Managed Services Agreement shall be billed under that agreement, and, for clarity, the billing terms provided in Sections 2.a. and 2.b shall not apply. For P1 services (i) not within the services scope of the Managed Services Agreement, or (ii) within the services scope of the Managed Services Agreement but performed outside the applicable managed services support hours, P1 services shall be billed as provided in 2.a. or 2.b., as applicable. Additional terms concerning managed services Customers are provided in 3.c., below.
   4. Circumstances when Customers Aren’t Billed – Choice shall not bill or invoice Customer for P1 services to the extent Choice can quickly determine that Choice will not be able to assist Customer. Choice and Customer acknowledge that it is difficult to pre-determine when the previous sentence would apply, and therefore Customer agrees that Choice shall have the sole authority to make a reasonable and equitable decision regarding such determination. For clarity, this paragraph 2.d. is only concerning additional billing for P1 services and shall not be read to provide a credit or reduction in an otherwise fixed, monthly, managed, or similarly billed service.
3. Coordination of Agreements
   1. Customers with an MSA – If Customer and Choice have a currently active Master Services Agreement or other master agreement regarding services (“MSA”), P1 services shall be performed subject to the MSA and the Terms. The Terms shall be deemed a Statement of Work (or a Work Order, P.O., or other applicable naming convention) under the MSA.
   2. Customers without an MSA – If Customer and Choice do not have a currently active MSA, or the relationship between Customer and Choice is not otherwise described in this Section 3, P1 services shall be performed subject to the Terms, including Section 7, below.
   3. Managed Services Customers – P1 services within the scope of an applicable Managed Services Agreement shall be performed subject to that agreement. If there is a disagreement about whether the P1 services are within the scope of the Managed Services Agreement, the parties will meet and discuss the scope of the P1 services. If a disagreement remains after such meeting, then Choice shall retain the ability to make the sole and final determination.
   4. Priority of Terms and Conditions – Customer and Choice acknowledge that these Terms and Conditions take precedence over any email or similar communication related to the P1 services. Further, the Terms shall take precedence over an MSA or Managed Services Agreement in the event of a direct conflict with these agreements.
4. Authority; When Fees Payable – Customer’s representative reviewing these Terms and authorizing the P1 services hereby agrees and confirms that they have authority to bind Customer to the same. Customer further acknowledges that once Choice allocates resources for P1 services that the minimum billable amounts become due and payable.
5. Miscellaneous
   1. Amendment; Waiver; Entire Agreement- Any waiver, amendment, or modification of any right, remedy, or other term hereunder will not be effective unless in writing and signed by an authorized person of the party against whom enforcement is sought. No waiver of any breach of any provision shall constitute a waiver of any other breach of the same or any other provision hereof. Neither party shall be bound by typographical or clerical errors. The MSA, Managed Services Agreement, and the Terms, as applicable, constitute the complete and exclusive agreement of the parties concerning the P1 services.
   2. Notice – Notice for P1 services described hereunder shall be deemed delivered when a party responds to the P1 service ticket and Customer and Choice are electronically notified within such ticketing system. The preceding sentence shall not reduce or eliminate any other method of notice provided in an MSA, but is intended to provide greater flexibility with respect to P1 services due to their heightened priority.
   3. Choice of Law – The Terms shall be governed, construed, interpreted, and enforced in accordance with the domestic laws of the state of Kansas, without giving effect to any choice of law or conflict of law provisions or rules (whether of the state of Kansas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the state of Kansas. The parties agree that any dispute arising out of or related to the Terms shall be brought exclusively in the state courts located in Johnson County, Kansas, or the United States District Court for the District of Kansas, and the parties consent to jurisdiction therein.
6. No Guarantee; No Liability for Delays – As P1 services are subject to many factors, including reliance on third-parties, Customer’s resource availability, the complexity of the issue, issues beyond Choice’s technical offerings, or other unknown and unforeseeable difficulties, Choice makes no specific guarantee or assurance concerning the actual timing and/or remediation for the P1 services. Choice will use commercially reasonable efforts to provide the P1 services as described in these Terms, but Choice: (i) does not guarantee that the P1 services will remediate Customer’s issue, either partially or fully, (ii) does not guarantee Customer’s systems will not experience service or availability issues (such as downtimes or service interruptions) as part of the remediation efforts, (iii) does not guarantee Customer will not experience future issues after P1 services are complete, and (iv) will not be held responsible for any inaction, delays, or other reliance by Customer with respect to Choice’s efforts for the P1 services. The statements in this Section 6 are made in addition and supplemental to, and not in any way limiting, any limitation of liability or other similar provisions in any MSA, Managed Services Agreement, or other applicable document referenced in the Terms or otherwise in effect between Choice and Customer.
7. Supplemental Terms – The following provisions of this Section 7 shall apply only to a Customer without an MSA:
   1. Confidential Information – Either party (the “Disclosing Party”) may, from time to time, disclose Confidential Information to the other party (the “Recipient”). “Confidential Information” is all nonpublic information concerning the business, employees, technology, and strategies of the Disclosing Party which is conveyed to the Recipient orally or in tangible or electronic form and is either marked as “confidential” or which, due to the circumstances surrounding its disclosure or its nature or sensitivity, should have been understood by the Recipient as intended to be treated as “confidential”. Confidential Information shall not include Disclosing Party’s comments or suggestions regarding Recipient’s business, products, or services (“Feedback”); provided, however, that Recipient shall not, without written permission, use Feedback in any way that would identify Disclosing Party to a third-party. Recipient will keep in confidence and will not disclose or disseminate, or permit any employee, agent or other party working under Recipient’s direction to disclose or disseminate the existence, source, content or substance of any Confidential Information to any other party unless such party is subject to a confidentiality agreement sufficient to comply with the confidentiality provisions herein, and only on a need to know basis for the performance described herein. Recipient will employ at least the same methods and degree of care, but no less than a reasonable degree of care, to prevent disclosure of the Confidential Information as Recipient employs with respect to its own Confidential Information. Confidential Information does not include information which: (i) is now generally known or available or which hereafter, through no act or failure to act on the part of Recipient, becomes generally known or available; (ii) is rightfully known to Recipient at the time of receiving such information; (iii) is furnished to Recipient by a third party without restriction on disclosure and without a breach by such third party of any confidentiality undertaking with respect thereto; or (iv) is independently developed by Recipient without the use of Confidential Information. Upon request of the Disclosing Party, Recipient shall return or destroy all of Disclosing Party’s Confidential Information held by Recipient.
   2. Background Intellectual Property –Customer hereby acknowledges and agrees that Choice is in the business of providing information technology installation, consulting, integration, and/or educational services and that Choice shall have the right to provide services that are the same or similar to the P1 services to third parties and shall retain ownership of and the right to use all methodologies, know how, processes, engineering details, materials, technology, technical documentation, inventions, algorithms, software, fixes, updates, architecture, logic, source files, source codes, engines or other backend and background elements, files and features incorporated into or utilized by the P1 services (collectively, “Background Intellectual Property”). Customer acknowledges and agrees that Choice shall retain ownership of any and all Background Intellectual Property, including any and all associated intellectual property and proprietary rights. On condition of Customer’s full and complete payment of all amounts owed, Choice hereby grants to Customer a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, distribute, display and perform Choice’s Background Intellectual Property to the extent incorporated into P1 services provided hereunder strictly for the purposes set out as described herein.
   3. Limitation of Liability; Claim Preclusion – Under no circumstances, whether on contract, warranty, tort (including negligence or malfeasance on the part of its employees or contractors), or otherwise, shall Choice be liable for any indirect, special, consequential, exemplary, enhanced, punitive, or incidental damages resulting from the P1 services rendered or the failure to render such P1 services, including, without limitation thereto, lost profits, loss of revenue, loss of use, loss of data, loss of equipment or any affiliated components or liability to third parties however caused, regardless of whether such damage was foreseeable and whether or not Choice has been advised of the possibility of such damages. Choice is not an insurer, and payments named herein are based solely on the value of the P1 services. It is impracticable and extremely difficult to adjudge actual damages from the nature of P1 services to be rendered, and, therefore, if, notwithstanding these provisions, there should arise any liability on the part of Choice, the aggregate liability shall be limited to an amount equal to Customer’s actual direct damages, but in no case to exceed the fee paid by Customer to Choice for the P1 services, and such amounts shall be received as liquidated damages and not as a penalty. If any applicable law limits the application of the provisions of this Section 7.c., then Choice’s liability shall be limited to the maximum extent permissible. Customer is precluded from making any claim against Choice to the extent that such claim relates to (i) any P1 services which have been altered (except by Choice or as otherwise instructed in writing by Choice), (ii) any P1 services which have been used in conjunction with another vendor’s product, software or services resulting in the defect, damage or loss, (iii) any P1 services which have been damaged by improper environment, abuse, misuse, accident or negligence, (iv) Choice’s compliance with Customer’s specifications, designs or instructions, (v) any third-party products, software, or equipment, and/or (vi) Customer’s breach of the Terms.
   4. No Warranties – Choice makes no warranty of any kind, express or implied, for the performance of the P1 services, including without limitation, any warranty of merchantability, non-infringement, fitness for a particular purpose, or any implied warranty arising from statute, course of dealing, course of performance, or usage of trade.