TERMS AND CONDITIONS

P1 SERVICES

• Services – Choice Solutions, L.L.C. (“Choice”, “us”, “we”) will, subject to these Terms and Conditions (“Terms”), provide agreed upon P1 (high priority/impact) services to the organization identified in the applicable service request/ticket (“Customer”, “you”, “your”) as outlined in such request/ticket. P1 services have 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. P1 services are limited to the high priority/impact issue, and Choice is not obligated to provide additional assistance after the P1 issue is remediated even if the actual remediation time is less than the minimum billed hours.

Billing Terms

• • Default Billing – Unless described in 2.b., 2.c., or 2.d., P1 services are (i) billed on a time and materials basis per resource at no less than Choice’s then-current Engineer billing rate, and (ii) billed a minimum 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).
  • Time Block Customers – Unless described in 2.c. or 2.d., P1 services shall be billed on a time and materials basis per resource against available hours on active and unexpired time blocks at the billing rate listed on the time block, but for the minimum hours provided in Section 2.a.(ii) (including after-hours and weekend rates) regardless of the minimum hours indicated on the time block.
  • Managed Services Customers – P1 services within the scope of an applicable Managed Services Agreement shall be billed pursuant to that agreement. Choice has the sole and final determination regarding whether P1 services are within the scope of a Managed Services Agreement.
    
    
  • Circumstances when Customer Isn’t Billed – Choice shall not bill for P1 services to the extent Choice can quickly determine that Choice will not be able to assist Customer, as made in Choice’s sole and final determination. Note that this paragraph only concerns billing for P1 services and does not provide a credit or reduction in an otherwise fixed, monthly, managed, or similarly billed service.

• Coordination of Agreements – Agreements then in effect between Choice and Customer, such as a master agreement for services (“MSA”), Managed Services Agreement, or other agreement, shall govern P1 services as applicable, with the Terms being supplemental to and not limiting such agreements; provided, however, that in the event of a conflict the Terms shall control (and shall be deemed an amendment to any such agreement to the extent necessary to accomplish the Terms).
• Authority; Payment – Customer’s representative authorizing the P1 services hereby confirms they have authority to bind Customer to the Terms. Customer further acknowledges that once Choice allocates resources for P1 services the minimum billable amounts become due and payable in full without refund. Payment for P1 services is Net 30 from the date of invoice. Any payment made by credit card is subject to a 3% processing fee. On any undisputed invoice greater than 60 days past due, Choice may charge Customer interest at a rate the lessor of (i) 1.5% or (ii) the maximum rate allowed under law, plus reasonable attorney fees and collection costs.

Miscellaneous

• • 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.
  • Notice – Without eliminating or reducing any notice provisions in any agreement between Choice and Customer, notice for P1 services may also be made through the ticket used for the P1 services.
  • Change Control – Unless otherwise stated by Customer, changes made as part of Choice’s P1 services shall be deemed pre-approved change controls by Customer. Choice will work with Customer on any reasonably required change control documentation needed after the P1 remediation is complete.
  • 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. Customer and Choice 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 Customer and Choice consent to jurisdiction therein.
• 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 interruptions, (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 P1 services.
• Supplemental Terms – This Section 7 shall only apply to a Customer that does not have an MSA with Choice:
  • 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.
  • 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.
  • 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.
  • 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.
  • Data Backup Obligation – Customer is responsible for maintaining backups of Customer’s documents, files, databases, and software applications.