TERMS AND CONDITIONS FOR SERVICES

1. Services; Scope; Response; Statement of Work – Choice Solutions, L.L.C. (“Choice”, “us”, “we”, “our”) will, subject to these Terms and Conditions (“Terms”), provide your organization (“Customer”, “you”, “your”) services pursuant to the support ticket created for your service request. Our services are subject to a scope and timeline determined in our sole discretion and based on our internal resource availability; however, for Priority 1 – Emergency Response (“P1”) services, we will attempt to expedite our response so that a resource is assigned within 1 business hour. Our services will be for the remediation you have requested, and we shall not be obliged to provide any other assistance beyond such remediation, including in situations where the actual remediation time is less than any applicable minimum billed hours. The support ticket and these Terms constitute a Statement of Work under any applicable master agreement for services (“MSA”).
2. Billing Terms
   1. 1. Minimum Billings; Interaction with Other Agreements – Services are billed on a time and materials basis, with a minimum of 2 hours for remote support (4 hours for P1 remote support) and 4 hours for on-site support (8 hours for P1 on-site support), at a rate per resource of no less than our then-current Engineer billing rate. Any billed hours for services performed (i) 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 (ii) Saturday or Sunday shall be billed at a rate of 2 hours per hour (all times Central). Notwithstanding the foregoing: (i) if you have an MSA or an available time block with different minimum hours, we will bill according to those minimums, except that P1 services are always subject to the respective 4 and 8 hour minimums, and (ii) if we determine the services are within the scope of a managed services agreement, then that agreement’s billing and other terms shall always control. Once we engage resources for P1 services, the minimum billable amounts become due and payable in full without refund.
      2. Payment; Collection Costs – Payments shall be made in the manner agreed in the MSA, time block, or other applicable agreement, with payments made by credit card subject to a 3% processing fee. Notwithstanding the foregoing, for P1 services, or if there is no MSA, time block, or other applicable agreement then in effect, then: (i) your invoice will be subject to applicable taxes, customary sales fees, tariffs, and a 3% processing fee for credit card payments, (ii) your payment is due Net 30 from the date of invoice, and (iii) on any undisputed invoice greater than 60 days past due we may charge interest at a rate the lessor of 1.5% or the maximum rate allowed under law, plus collection costs and reasonable attorney fees.
3. Service Delivery
   1. 1. General – We will use commercially reasonable efforts to provide the services; however, due to the nature of P1 and break/fix services, we (i) do not guarantee our services will remediate your issue, in full or in part, (ii) may be prevented from performing due to your inaction or delay, (iii) cannot guarantee uptime during the provision of services, and (iv) cannot guarantee that services will prevent the same or similar future issues. Except as provided in an MSA, (a) you will have 7 business days from the delivery of the services to identify whether any services have not been performed with commercially reasonable efforts, and we will use reasonable efforts to try to remediate any such non-conforming services, and (b) other than the warranty in this paragraph, we make no warranty of any kind, express or implied, for the performance of the 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.
      2. P1 Services – P1 SERVICES INVOLVING SYSTEM SECURITY, INCLUDING THREAT DETECTION AND REMEDIATION, ACCESS CONTROL SETUP AND TUNING, ENVIRONMENT REBUILDS, ETC. DO NOT INCLUDE A GUARANTEE THAT YOUR SYSTEMS ARE, OR WILL IN THE FUTURE BE, FREE OF MALWARE, BREACHES, OR OTHER SECURITY THREATS. We recommend that you contact your insurance provider for instructions in the event of any cyber security breach, and we do not guarantee that our services will be covered and payable by your cyber security insurance.
4. Miscellaneous
   1. 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 shall constitute a waiver of any other breach. 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 services.
      2. Notice – Without eliminating or reducing any notice provisions in any agreement between us and you, notice for services may also be made through the ticket created for the services.
      3. Authority – Proceeding with services demonstrates your confirmation that you have authority to bind your entity to the Terms.
      4. Priority of Agreements – The Terms are supplemental to, cumulative with, and not intended to limit any other applicable agreements then in effect between you and us, such as statements of work, an MSA, or a managed services agreement. In the event of a conflict between any such agreements and the Terms, the Terms shall control.
5. Supplemental Terms – This Section 5 shall only apply if you don’t have an MSA with us:
   1. 1. 1. Mutual Confidentiality
            1. Definition of 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.
            2. Usage – 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.
            3. Exclusions – 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 – We shall have the right to provide services that are the same or similar to the services under these Terms 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 services (collectively, “Background Intellectual Property”). You acknowledge and agree that we shall retain ownership of all Background Intellectual Property, including all associated intellectual property and proprietary rights. On condition of your full and complete payment of all amounts owed, we grant you a non-exclusive, royalty-free, perpetual, irrevocable, worldwide license to use, reproduce, distribute, display and perform our Background Intellectual Property to the extent incorporated into the services provided hereunder strictly for the purposes set out as described in the ticket.
         3. Limitation of Liability; Damages; Claim Preclusion
            1. No Indirect or Other Additional Damages – Under no circumstances, whether on contract, warranty, tort (including negligence or malfeasance on the part of its employees or contractors), or otherwise, shall we be liable for any indirect, special, consequential, exemplary, enhanced, punitive, or incidental damages resulting from the services rendered or the failure to render such 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 we have been advised of the possibility of such damages.
            2. Limitation to Actual Damages – It is impracticable and extremely difficult to adjudge actual damages from the nature of services to be rendered, and, therefore, if there should arise any liability against us, our aggregate liability shall be limited to an amount equal to your actual direct damages, but in no case to exceed the fee paid by you to us for the 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 paragraph, then our liability shall be limited to the maximum extent permissible.
            3. Claim Preclusion – As we are unable to incur liability for items outside our control, you agree that you are precluded from making any claim against us to the extent that such claim relates to (i) any services which you have altered (except if we have instructed you to make the alteration), (ii) any issue with the services to the extent caused by your integration of the services with a third party’s product, software or services, (iii) any services which have been damaged by improper environment, abuse, misuse, accident or negligence, (iv) our compliance with your specifications, designs or instructions, (v) any third-party products, software, or equipment, and/or (vi) your breach of the Terms, or (vii) any claims based on Choice serving in the place of an insurer (i.e. we are not functioning as your cyber insurance).
         4. Data Backup Obligation – Unless specifically contracted for, we are not responsible for maintaining any backups of your data.
         5. 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. 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 you and we consent to jurisdiction therein.