General Terms and Conditions

GP Technology Solutions LLC (d/b/a D-Best Technologies)

GENERAL PROVISIONS

1. Definitions and Interpretation

In these Conditions, the Rate Schedule and every Quote, Order, Plan contract, or other arrangement in connection with the supply of Goods or Services by D-Best Technologies the following words have the following meanings:

Interpretation

In these Conditions, unless the contrary intention appears:

• Words denoting the singular number only shall include the plural number and vice versa
• Reference to any gender shall include every other gender
• Reference to any Law, Statute or Regulation shall include any amendment currently in force at the relevant time and any Law, Statute or Regulation enacted or passed in substitution therefore
• Headings and words put in bold are for convenience of reference only and do not affect the interpretation or construction of these Conditions
• All references to dollars ($) are to USD
• A reference to time is to CST (Central Time UTC -6:00)
• A reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa
• A reference to a recital, clause, schedule, annexure or exhibit is to a recital, clause, schedule, annexure or exhibit of or to these Conditions
• A recital, schedule, annexure or description of the parties forms part of these Conditions
• A reference to any agreement or document is to that agreement or document (and, where applicable, any of its provisions), as amended, novated, supplemented or replaced from time to time
• Where an expression is defined, another part of speech or grammatical form of that expression has a corresponding meaning
• A reference to “includes” means includes without limitation
• A reference to “will” imports a condition not a warranty
• A reference to bankruptcy or winding up includes bankruptcy, winding up, liquidation, dissolution, becoming an insolvent under administration, being subject to administration and the occurrence of anything analogous or having a substantially similar effect to any of those conditions or matters under the law of any applicable jurisdiction

2. Application of These Conditions

Unless otherwise agreed by Us in writing, these Conditions are deemed incorporated in and are applicable to the terms of every Quote, Order, Plan, contract, or other arrangement in connection with the supply of Goods and/or Services by Us to You. For a signed Managed IT Agreement, these Conditions are incorporated only to the extent they do not conflict with that Agreement, and the Managed IT Agreement prevails in the event of inconsistency.

The invalidity or enforceability of any one or more of the provisions of this Agreement will not invalidate, or render unenforceable, the remaining provisions of this Agreement.

3. Termination

3.1 This Agreement may be terminated by You upon ninety (90) days written notice if We:

• 3.1.1 Fail to materially fulfil our obligations under this Agreement and do not remedy such failure within 30 days of written notice.
• 3.1.2 Breach any material term and fail to remedy such breach within 30 days of written notice.
• 3.1.3 Terminate or suspend our business operations, unless it is succeeded by a permitted assignee under this Agreement.

3.2 This Agreement may be terminated by Us upon ninety (90) days written notice to you.

3.3 If either party terminates this Agreement, we will assist you in the orderly termination of services, including timely transfer of the services to another designated provider. You agree to pay us for rendering such assistance at our normal rates as outlined in our current Rate Schedule.

3.4 Should You wish to terminate this Agreement before the end of the commitment term, You agree to pay all of the remaining payments up until the end of the commitment term in addition to any outstanding payments for Orders already placed or In Progress.

3.5 Upon termination by either party, You agree to grant Our technicians access to remove any equipment provided as part of this Agreement but not purchased by You. You acknowledge that removal of these devices, such as firewalls and access points, may affect your operations.

4. Representations

4.1 You acknowledge that no employee or agent of Ours has any right to make any representation, warranty or promise in relation to the supply of Goods or Services other than subject to and as may be contained in the Conditions.

5. Notices

5.1 Any notices given under the Conditions shall be in writing and sent by e-mail to the last notified e-mail address of Yours.

6. Governing Law

6.1 The Conditions shall be governed by and construed in accordance with the laws of the United States of America and the parties submit to the non-exclusive jurisdiction of the Courts of the State of Arkansas.

7. Assignment

7.1 You may not assign Your rights and obligations under this Agreement without the prior written consent of Us.

8. Variation of These Terms and Conditions

8.1 We may at any time vary these Terms and Conditions by publishing the varied Terms and Conditions on Our website. You accept that by doing this, We have provided You with sufficient notice of the variation. We are under no other obligation to notify You of any variation to these terms and conditions.

GOODS AND SERVICES

9. Quotes

9.1 Term and effect: Quotes will only be valid for 7 days unless otherwise specified in the Quote. A Quote is merely an invitation to You to place an Order with Us and the acceptance of a Quote by You will not create a binding contract between You and Us.

9.2 Quote is valid for 7 days only. Expiry dates on quotes are set to be able to inform Us when the quote is still active or to be discarded. Once discarded the quote will need to be requested again.

9.3 Once a quote has been confirmed by Us, then the prices in the quote will be confirmed as the final agreed price. A quote is confirmed as ‘final’ as soon as both parties agree with the final price after any last changes requested by You.

9.4 The price in the final quote may vary from the original request if there are any product changes. We reserve the right to alter products in the quote, as long as the modification is subject to Your final approval.

9.5 Quotes and estimates shall be deemed to correctly interpret the original specifications and are based on the cost at the time the quote or estimate is given. If You later require any changes to the quotes, and We agree to the changes, these changes will be charged at Our prevailing rate.

9.6 Once the Quote has been confirmed and converted to an Order, the Order will be subjected to our normal Terms and Condition of Sale.

9.7 The general minimum turnaround time for Quote request to be actioned is usually 24 hours. In the event that a quote is required urgently please let us know so that we can respond to it accordingly.

9.8 When a special price or discount offer has been applied to this Quote, no other special promotion, discount or bonus offer will be applicable.

9.9 In the event that products in the Quote are subjected to any price and supply fluctuations that is outside of Our control We reserve the right to update the price and product in the Quote accordingly. If a product has undergone a price drop or a price increase, the Quote will then be adjusted accordingly. If there is a product that is no longer available, the product will then be replaced or substituted based on Your request and is subject to Your final approval.

9.10 Price on non-stocked products are subjected to Price and stock fluctuations and can only be confirmed once the Quote is turned into an Order. While We endeavour to honour every price quoted, if there is a price increase that is beyond our control, We reserve the right to increase the price as necessary.

9.11 Once a Quote has already passed the expired date, We may cancel the quote or estimate without having to notify or receive an approval from You.

9.12 ETA information is based on an estimate given by our vendors and cannot be held as the actual promised date.

9.13 Freight charges will be added to the Order unless otherwise stated. Any included delivery charges are estimates only.

9.14 We do not keep inventory on every item and as such only order items once we receive a completed order from a client. If You would like to return an item or cancel an order, a restocking fee may apply. We will need to get approval from the distributor that the stock is returnable before being able to issue a refund as not all products can be returned.

9.15 Prices are based upon total Quote Purchase.

9.16 Unless Specified, all items on quote are covered by manufacturer’s warranty covering parts and labor for hardware only on a return to depot basis.

9.17 Varying or withdrawing Quotes: We may vary or withdraw a Quote at any time in Our absolute discretion and without prior notice to You. We may do so for any reason We consider fit, including, e.g. where the Goods or Services become unavailable or the cost price of Goods or Services increases after the date of the Quote.

10. Orders

10.1 Order forms: You may place an Order for Goods and/or Services with Us via email or by approving a Quote. Normally, We will require that You provide either a signed Quote or You approve the quote electronically via an email with the date, Quote number and Your details, including Your full legal name (and the full name or description of any person on whose behalf the order is placed).

10.2 Approval of Orders: You will need to sign the Quote or have it duly executed on Your behalf, unless the Order is approved by email, in which case the Quote will be treated or deemed as if signed by or on behalf of You by the person whose name appears as the sender of the email.

10.3 Reliance on appearance of validity: Absent actual knowledge to the contrary, We may rely upon the apparent validity of an Order. If any Order is signed or sent by email or approved through the web based ordering system by a named person, that person warrants that the Order is, and it is acknowledged the Order is deemed in favour of Us to be:

• 11.3.1 signed by, and duly authorized by, both the person who signed the Order and the person who sent the email; and
• 11.3.2 duly authorized by the person on whose behalf the Order is placed or apparently placed.

10.4 Acceptance and Orders: An Order has no effect unless or until it is accepted by You in writing and, if you are not approved for credit terms, until We have received from You payment in clear funds for the Order.

10.5 No obligation to deliver: We are not obligated to deliver any Order until we have received payment in clear funds from You for the Order or where We are unwilling or unable to complete the Order for any reason provided it refunds any payment made by You in respect of the Order.

10.6 Credit checks: For the purposes of ascertaining the credit standing or history of a prospective customer to whom We are considering extending credit or payment terms, You hereby consents to Us undertaking a credit reference check in respect to You.

10.7 Cancellation of Orders: You will not cancel an Order unless We agree to do so in writing in Our absolute discretion. You acknowledge that, amongst other things, We cannot cancel an Order once the manufacturer or supplier has despatched the relevant Goods and that such despatch often occurs the same day as the Order is placed by Us.

10.8 Processes and Procedures: We have processes and procedures that We follow in the course of the provision of Our Services and the supply of Goods. You agree to co-operate with Us and to comply with such processes and procedures as advised to You from time to time.

11. Services and Plans

11.1 Service and Plan Variations: Currently, We offer the Services and Plans referred to in the Rates Schedule and any Plan Schedule. We may withdraw the provision of, or vary the scope or terms of, or add to or change, the Services without notice to You, from time to time in Our absolute discretion.

11.2 Copies on Request: We will provide You with a copy of the current Rates Schedule upon request. Plan Schedules are tailored for particular Plans and are available to Clients participating in the Plan.

12. Pricing and Rates

12.1 Rates exclude Tax: All rates and amounts charged or quoted for Goods and/or Services by Us are exclusive of Tax and any other applicable taxes or government charges (unless otherwise stated in writing by Us).

12.2 Rates Schedule: You must pay for Goods and Services at the Rates set out in any applicable Plan and the Rate Schedule as applicable from time to time during the provision of the Goods and/or Services.

12.3 Vary Rates: We reserve the right to vary any Rate and/or the Rate Schedule from time to time in Our discretion. Rates for Services under a signed Managed IT Agreement may not be varied during the Commitment Term except as expressly permitted by that Agreement’s Pricing Adjustments section.

Notwithstanding the foregoing, third-party subscription costs (including Microsoft 365 licensing) that are passed through at cost are subject to change if the underlying vendor modifies its published pricing. Provider will give Client thirty (30) days’ written notice of any such pass-through adjustment.

12.4 Call-out fees: You acknowledge that call-out fees may be charged in addition to the Rates at Our absolute discretion and that the amount of the call-out fee will depend upon where the Services are provided.

12.5 Return/Cancellation Fee: Where We arrange a return or refund on behalf of You, or where an Order is cancelled by You after acceptance by Us, We may charge You a Return/Cancellation fee to cover the administration costs to Us in processing the return or refund, or in processing the Order, the cancellation and any refund. We may deduct the Return/Cancellation fee from out of any moneys otherwise due to be refunded to You by Us.

12.6 Appointment Cancellation Fee: If You cancel or reschedule a scheduled Service appointment within 24 hours of the agreed-upon time, We may charge You a Cancellation Fee to cover the costs associated with scheduling, preparation, and resource allocation. This fee will be determined at Our discretion based on the nature of the scheduled Service and any incurred costs. The Cancellation Fee will be added to Your next invoice or deducted from any pre-paid amounts, if applicable.

12.7 Expenses: You must pay any out of pocket expenses incurred by Us in providing the Services to You in addition to the Rates, charges and call-out fees, upon written demand. Where appropriate, We will obtain prior written authorization from You before such expenses are incurred.

12.8 Separate charges for Goods and Services: We may in Our absolute discretion charge for Goods separately from Services or may charge for Goods and Services together.

12.9 Calculation of increments: Where a charge is calculated based on increments of time, e.g. 1 hour or 30 minutes, We will charge the applicable rate for the whole increment of time even if work is done during part of, but not for the whole of, that increment of time.

12.10 Change in underlying costs: Without prejudice to any other rights of Ours under these Conditions, where there is any increase in the underlying costs incurred by Us in connection with the supply of Goods or Services to You, We may, in our absolute discretion, vary any of Our Rates.

12.11 Annual CPI Adjustment: Starting one (1) year after the Effective Date of this Agreement, and at each subsequent anniversary, pricing of this Agreement will automatically adjust according to the most recent December publicly available Consumer Price Index (CPI) figures provided by the Bureau of Labor Statistics (BLS).

Example: If your Monthly Agreement rate is $1,000 and the latest CPI figure is 2%, your new monthly rate will adjust to $1,020. Conversely, if the CPI figure is -2%, the monthly rate will adjust to $980.

13. Contracting

13.1 We may subcontract any or all of the Services to be performed, but shall retain prime responsibility for the Services under these terms.

14. Delivery, Title and Risk

14.1 Delivery liability: We will use all reasonable endeavours to despatch Goods by the due date, but do not accept any liability for non-delivery or failure to deliver on time where this is caused by circumstances beyond the reasonable control of Ours, including, for example, due to failures in supply to Us or delays caused by third parties, such as delivery companies or manufacturers.

14.2 Availability to accept delivery: You must be available to accept the Goods at Your nominated delivery address during Business Hours unless otherwise arranged.

14.3 Passing of Risk: Delivery is deemed to take place when the Goods are delivered to Your nominated address, whereupon risks of loss, breakage and all damage and all other risks pass to You. Nothing in this clause 14.3 will affect title to the Goods.

14.4 Obligation to insure: You will ensure that Goods are adequately insured from the time of delivery under clause 14.3.

14.5 Retention of Title: Until We receive full payment in cleared funds for any money due to Us by You on any account or for any reason:

• 15.5.1 title to, and property in, Goods supplied to You remain vested in Us and does not pass to You;
• 15.5.2 You must hold those Goods as fiduciary bailee and agent for Us and must not sell them;
• 15.5.3 You must keep those Goods separate from other goods and maintain the Goods and their labelling and packaging intact;
• 15.5.4 Where You sell the goods in breach of these Conditions, You are required to hold the proceeds of any sale of those Goods on trust for Us in a separate account;
• 15.5.5 We may, without prior notice, enter into any premises where We suspect those Goods may be, take possession of those Goods and sever and remove those Goods and You hereby irrevocably authorize and direct Us (and Our employees and agents) to enter into such premises;
• 15.5.6 You irrevocably appoint Us as Your attorney to do anything We consider necessary in order to enter such premises and repossess the Goods.

15. Returns and Claims for Goods and Services

15.1 General Returns Policy: You acknowledge that We supply Goods subject to all applicable conditions, including returns and claims policies, of any relevant manufacturer or supplier.

15.2 Customised Goods not returnable: Where Goods have some element of customisation for You, are supplied pursuant to an Order for Goods that is special or unusual, the Goods are obtained from overseas, or the Goods are otherwise not readily returnable, You may not return the Goods to Us or cancel the related services.

15.3 Duty to inspect: You will inspect all Goods immediately upon their delivery. Within 7 days of such delivery You may give written notice to Us of any matter or thing by reason of which You might wish to return the Goods, ask for a refund, or make a claim. If no such notice is given on time, You will accept the Goods without any such return, refund or claim.

15.4 Return Condition: Where You are entitled to return Goods under these Conditions, You must return the Goods in their original condition and unopened.

15.5 Return costs: You will pay all costs and expenses incurred by Us in arranging the return of the Goods to a manufacturer or supplier unless that manufacturer or supplier pays such costs.

15.6 Consequences of use, installation, customisation or sale: You will indemnify and hold Us harmless in respect of all allegations and claims in respect of Goods once such Goods have been used, installed, customised or re-sold by You.

16. Computer Utility, Functionality and Fitness for Purpose

16.1 Service limitations given the science of computing: You acknowledge that a reasonable incident of the Services may involve trial and error and that it is a science applied often in novel or unknown circumstances and involving experiment. While We will make all reasonable endeavours to provide appropriate tests, troubleshooting, sound advice and good recommendations, You will always indemnify and hold Us harmless in the provision of our Services to You.

16.2 Reasonable Assistance Limits: We are only obliged to provide what We consider, in Our absolute discretion, to be reasonable assistance in the circumstances under any Plan and You will pay for additional work at the Rates unless otherwise agreed.

16.3 Recommendations, suitability, functionality and fitness for purpose:

• 17.3.1 We may recommend that You purchase Goods provided by third parties from time to time;
• 17.3.2 Recommendations may be made in situations where You have made known to Us the purpose for which the Goods will be used;
• 17.3.3 You acknowledge that We have no control over many factors involved with the suitability, function or fitness for purpose of Goods;
• 17.3.4 You acknowledge that for reasons outside of Our control, the Goods may fail to meet Your expectations;
• 17.3.5 You acknowledge that customisation may be a very substantial project in itself;
• 17.3.6 You will accept the sole responsibility for decisions as to whether or not to follow recommendations by Us and any failure or defect in suitability, function or fitness for purpose;
• 17.3.7 Where We provide Services with a view to achieving Your purposes, You must pay for those Services on time without any set-off or counter-claim.

16.4 Testing Procedures: You will follow Our instructions with regard to testing or troubleshooting any problems.

17. Force Majeure

17.1 If We are unable to supply any Goods or Services due to circumstances beyond Our reasonable control, We may cancel the Order or cease to provide the Services by written notice to You, in which case You will hold Us harmless.

17.2 We will not be liable for any breach of contract due to any matter or thing beyond Our control, including failures by third parties to supply goods, services or transport, stoppages, transport breakdown, fire, flood, earthquake, acts of God, strikes, lock-outs, work stoppages, wars, riots or civil commotion, intervention or public authority, explosion or accident.

18. Product Specifications

18.1 Alterations to Specifications: We make every effort to supply the Goods in accordance with the Order however We may supply alternate Goods subject to minor variations in actual dimensions and specifications where these are changed by the manufacturer after the Order date.

18.2 Substitute Goods: If We cannot supply the Goods ordered by You, We may supply alternate Goods of equal or superior quality provided that You will not pay a higher price than the price Quoted.

19. Warranties

19.1 Reliance on Manufacturer’s Warranty: You will rely on the warranties provided by the manufacturer of Goods supplied by Us (where applicable) and will deal direct with such manufacturer rather than Us for all claims covered by such warranties.

19.2 No claim for manufacturer’s default: You indemnify and hold Us harmless in respect of the performance or otherwise, by any manufacturer of Goods supplied to You by Us.

20. Liability

20.1 Exclusion: Except as specifically set out herein and so far as may be permitted by law, any term, condition or warranty in respect of the quality, fitness for purpose, condition, description, assembly, manufacture, design or performance of the Goods or Services, whether implied by statute, common law, trade usage, custom or otherwise, is hereby expressly excluded.

20.2 No liability for program or data loss: You indemnify and hold Us harmless in respect of any allegation, claim, loss or expense for any program or data loss or damage suffered arising directly or indirectly from the supply of the Goods or Services by Us to You. You acknowledge You are solely responsible for backing up Your programs and data.

20.3 Limit on consequential damage: You indemnify and hold Us harmless in respect of any allegation or claim as to any indirect or consequential losses or expenses, including but not limited to loss of turnover, profits, business or goodwill.

20.4 Limit on damage from a failure in supply: You indemnify and hold Us harmless for any allegation or claim for loss or damage where We have failed to meet any delivery date or cancels or suspends the supply of Goods or Services.

20.5 General limit on liability: Except as otherwise expressly stated, We are not liable for any loss or damage of any kind however caused which is suffered or incurred by You in connection with:

• 21.5.1 Goods or Services provided to You or any Work;
• 21.5.2 these Terms and Conditions;
• 21.5.3 Your use of Our website or any linked website;
• 21.5.4 the non-availability of Goods or Our Services for any reason;
• 21.5.5 any act or omission of Ours or the provision of inaccurate information by You;
• 21.5.6 for any other reason whatsoever.

20.6 Limitation options: To the extent that any legislation implies a condition or warranty that cannot be excluded but can be limited, Our liability is limited to Our doing any one or more of the following (at its election):

• 21.6.1 replacing the Goods or supplying equivalent Goods, Services or Work;
• 21.6.2 repairing the Goods or the Work;
• 21.6.3 paying the cost of replacing the Goods or acquiring equivalent Goods, Services or Work; or
• 21.6.4 paying the cost of having the Goods or the Work repaired.

20.7 Laws still apply: Nothing in these Conditions is to be interpreted as excluding, restricting or modifying the application of any State or Federal legislation applicable to the supply of the Goods or Services which cannot be excluded, restricted or modified.

20.8 Severance: If any provision contained in the Conditions is unlawful, invalid or unenforceable, those provisions may be severed without prejudice to the validity of the remaining provisions.

21. Errors and Omissions

21.1 We make every effort to ensure that all prices and descriptions quoted are correct and accurate. In the case of an error or omission, We may rescind the affected contract by written notice to You. Our liability in that event will be limited to the return of any money You have paid in respect of the Order.

OUR RESPONSIBILITIES

22. Privacy Statements and Your Rights

22.1 We are collecting Your personal information for the fulfilment of Quotes, Orders and the provision of Goods or Services to you and it may retain and use it for any such purposes (“Authorized Purposes”).

22.2 You are required to provide your personal information to Us for Authorized Purposes.

22.3 We may disclose Your personal information to other persons for the purposes of fulfilling Quotes, Orders and Work for you or in order to provide Goods or Services to You.

22.4 Otherwise We will not disclose Your personal information without Your consent unless authorized by law.

22.5 Your personal information will be held by Us at Our Principal Place of Business and You can contact Us to request to access or correct it.

22.6 We rely on You to submit correct information and details where requested. You accept that You may incur additional expenses if you submit incorrect information.

23. Our Website

23.1 We make no representations or warranties in relation to information available on Our website, including without limitation:

• 24.1.1 that the information on Our website is complete or correct;
• 24.1.2 that Our website will be continuously available or free from any delay in operation or transmission, virus, communications failure, internet access difficulties or malfunction in hardware or software.

24. Insurance Coverage

24.1 We will maintain, at Our own expense, commercial general liability insurance for personal injury and property damage for a general aggregate of $1,000,000. At Your request We will provide You with certificates evidencing such coverage within thirty (30) days of commencing this Agreement, at every renewal and at other times as may be reasonably requested by You.

YOUR RESPONSIBILITIES

25. Creation of Ticket Requests

25.1 In order for Us to provide You with the agreed Service, You agree to follow Our process for creating Ticket Requests as outlined in Appendix A.

26. Access to Systems, Sites and People

26.1 In order to provide You with the agreed Service, You agree to give Us access to various items of Yours including but not limited to, equipment, people and sites as and when required.

26.2 You agree to allow Us to install software on Your Equipment that allows Our technicians to access Your systems at any time. This software allows Us to view system statuses, send monitoring information, see users’ desktops and control Your PC’s. This may require that devices are left on overnight or weekends.

27. Third Party Authorizations

27.1 At times We may need to contact Your third party providers on Your behalf, such as Your internet provider. Some of these providers may require Your authorization for Us to deal on Your behalf. It is Your responsibility to ensure that We are able to deal freely with these providers.

28. Payment, Late Payment and Default

28.1 Payment due date: All invoices issued to You are due and payable to Us within the terms stated on the invoice (unless otherwise agreed in writing) by cash, cheque, credit card or direct deposit.

28.2 7 days late: Where You fail to pay an invoice within seven (7) days of the due date, We may, in Our absolute discretion and without prior notice, suspend or discontinue the supply of Goods and/or Services to You.

28.3 Recoveries: All legal and other costs and expenses incurred in connection with the recovery of late payments will be added to the amount due by You to Us. If You default in payment of any invoice on time, moneys which would have become due by You at a later date shall be immediately due and payable. Collectively, all of these moneys are referred to as a “Sum Due”.

28.4 Interest: If payment of any Sum Due is not made on time, We will charge interest daily on the Sum Due at the maximum rate allowed by law.

28.5 Application of funds: All payments of the Sum Due made by You to Us will be applied as follows:

• 29.5.1 first in or towards payment of any costs, charges, expenses or outgoings;
• 29.5.2 secondly, in or towards payment of any interest due or payable; and
• 29.5.3 thirdly, in or towards payment of Your debts to Us in order from the longest standing due to the most recently incurred.

28.6 Security: We may require You to provide security over Your property as collateral for any Sum Due.

28.7 Payment arrangements: In the event that a repayment arrangement is made and a payment is missed, We may again suspend or discontinue the supply of Goods or Services to You.

28.8 Other remedies: We may exercise any of Our rights and remedies including taking legal action against You for the recovery of any moneys due to Us.

29. Non-Solicitation of Clients and Employees

29.1 Both parties agree that the other party’s employees are valuable assets. During the course of this Agreement and for a period of eighteen (18) months thereafter (or the maximum period permissible by a Court of competent jurisdiction), neither party shall directly solicit, recruit, or induce any employee of the other party to leave their employment. For the avoidance of doubt, this provision does not restrict either party’s employees from independently responding to public job postings or general recruitment advertising not specifically targeted at the other party’s employees.

29.2 In the event either party violates this provision, the violating party agrees to pay the other party fifty percent (50%) of the employee’s base annual salary as liquidated damages, which both parties agree represents a reasonable estimate of the costs associated with recruiting, hiring, and training a replacement. The non-violating party shall also have the option to terminate this Agreement without further notice or liability.

30. Software

30.1 All Software licences are the responsibility of You and not that of Us. It is Your duty to store all licences for all Software used.

30.2 You indemnify and hold Us harmless against any claim, allegation, loss, damage or expense arising directly or indirectly from:

• 31.2.1 any unauthorized Software use by You;
• 31.2.2 any breach of any Software licence;
• 31.2.3 otherwise as a result of Us installing Software where You are not authorized to use the Software; and
• 31.2.4 any problem, defect or malfunction associated with any Software supplied by third parties.

30.3 All copyright in custom software remains the sole property of Ours unless alternate arrangements are made as part of a separate software agreement.

31. Copyright and Confidentiality

31.1 Warranty and breach: You warrant that any confidential or copyright information or intellectual property provided by You to Us belongs to You. You indemnify and hold Us harmless in respect of any allegations, claims, loss, costs or expenses in connection with such breach of warranty by You.

31.2 Retention of title: All copyright and other intellectual property rights in any Work created by Us in the course of the supply of Services will be the exclusive property of Ours unless otherwise agreed in writing.

31.3 Confidential Information: We acknowledge that in the course of providing Services to You, We may learn certain non-public personal and otherwise confidential information relating to You. We shall regard all such information as confidential.

31.4 You also acknowledge that all information and services, consulting techniques, proposals, and documents disclosed by Us constitute valuable assets and confidential information to Us.

Both parties shall take all commercially reasonable steps to not disclose, reveal, copy, sell, transfer, assign, or distribute any part of such information in any form, except unless permitted in writing by the disclosing party or as required by applicable law.

32. Indemnification

32.1 Your Indemnification: You agree to indemnify, defend, and hold harmless GP Technology Solutions LLC and its officers, directors, employees, and agents from and against any claims, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees) arising from:

• (a) Your use or misuse of the Services or Goods;
• (b) Your breach of these Conditions or any Agreement;
• (c) third-party claims arising from the operation of Your business or network; or
• (d) any violation of applicable law by You.

32.2 Our Indemnification: We agree to indemnify, defend, and hold harmless You and Your officers, directors, employees, and agents from and against any claims, damages, losses, liabilities, and expenses (including reasonable attorneys’ fees) arising from:

• (a) claims that the Services or Goods infringe a third party’s intellectual property rights; or
• (b) Our gross negligence or willful misconduct in the performance of the Services.

32.3 Cooperation: Both parties agree to cooperate reasonably in the defense of any claims subject to indemnification under this section.

33. Data Breach Notification

33.1 Your Notification: You agree to notify Us immediately via telephone upon discovering any breach of security affecting Your computers, passwords, security codes, or any systems We manage on Your behalf, so that We may take appropriate precautionary steps to protect Your Data.

33.2 Our Notification: We agree to notify You within 48 hours of discovering any security incident or data breach affecting Your systems, Data, or accounts that We manage. Our notification will include, to the extent known:

• (a) the nature and scope of the incident;
• (b) the types of Data potentially affected;
• (c) the steps We are taking to contain and remediate the incident; and
• (d) recommended actions for You.

33.3 Cooperation: We will cooperate with You in investigating any breach and will provide reasonable assistance in fulfilling any legal notification requirements You may have.

APPENDIX A: Ticket Request Process

How to Submit a Ticket

When you contact us to lodge a service request, only the methods below must be used:

Include:

• A short description of the problem
• Any screenshots of errors to assist in the resolution of the issue
• If lodging by phone or email: your name, company and return contact details

Note: Service requests must not be lodged directly with technicians, as this detracts them from resolving the current issue.

Ticket Requests Outside of Our Business Hours

Service Requests that are made outside of our standard business hours may be addressed on a “best effort” basis, without any guaranteed response times or commitments. While you are welcome to lodge requests at any time, please note that we make no guarantee that these requests will be addressed immediately or outside of the next regular business day.

VOICE SERVICES TERMS AND CONDITIONS

Note: The following Voice Services Terms supplement the General Provisions above. The General Provisions (Sections 1-34) apply to Voice Services unless specifically modified below. Where these Voice-specific terms conflict with the General Provisions, these terms prevail for Voice Services.

1. Maintenance and Equipment Management

1.1 Maintenance Services: We will maintain our facilities and equipment necessary for providing Services at no additional cost, except in cases where maintenance is necessitated by issues originating from your facilities or equipment. In such cases, you will be billed for maintenance at our standard rates.

1.2 Scheduled Service Interruptions: We may need to suspend Services for scheduled maintenance or upgrades outside of regular business hours (Monday-Friday, 8:00 AM to 5:00 PM, excluding major holidays). We will provide at least 48 hours’ notice and require your approval before proceeding.

1.3 Access for Maintenance and Equipment: On receiving 48 hours’ notice, you agree to grant or assist us in obtaining access to your premises for installation, repair, or maintenance of facilities and equipment.

1.4 Ownership and Removal of Equipment: Equipment and facilities installed by us on your premises remain our property and may be used for other customers. No rent or charge will be imposed by you for hosting our equipment. Upon service termination, we retain the right to remove our equipment and facilities. If access for removal is denied, we may charge a fee equal to 125% of the equipment’s retail cost.

2. Service Quality and Warranties

2.1 Service Quality: We strive to maintain our Services 24/7. However, we do not guarantee uninterrupted service. For outages over 12 hours attributable to us, we’ll credit the affected services’ monthly recurring charge for the outage period. No credit will be provided for interruptions caused by you or third-party activities.

2.2 Equipment Compatibility and Internet Dependence: Our Voice Service is dependent on a functioning Internet connection and compatible customer equipment. You are responsible for any necessary upgrades to maintain compatibility. Power or ISP outages may disrupt our Service, and you may need to reset or reconfigure equipment after such disruptions.

2.3 Emergency Services Limitation: Power disruptions or ISP failures will prevent dialing to emergency numbers, including 911.

2.4 Service Suspension or Termination: If we suspend or terminate your Service, it will not function until restored by us (subject to payment of all dues and reconnection fees).

2.5 Limited Warranty: Our warranty covers 12 months for supplied phones and the duration of the lease for leased equipment. This does not extend to damages from misuse, natural causes, or unauthorized modifications. We may use refurbished parts for repairs.

2.6 Warranty Limitations: This warranty is exclusive and in lieu of all other warranties. We shall not be liable for any direct, indirect, incidental, or consequential damages arising from your use or inability to use the product. Our obligation is limited to repair or replacement.

3. Limited Liability

3.1 Liability Limitation: Our liability for damages related to the provision, maintenance, or restoration of Services is limited to the amount of your actual damages, not to exceed the service charges for the affected period. We are not liable for loss of use, income, profits, or any special, incidental, or consequential losses.

3.2 Exclusion of Liability: We shall not be liable for fraudulent activities resulting in charges, nor for delays or service failures due to third-party actions, power outages, internet service provider issues, or circumstances beyond our control. This includes the inability to connect emergency calls during power or ISP outages.

3.3 Content and Transaction Liability: We are not liable for the content of data transmissions or losses resulting from transactions entered into through the Service.

3.4 Survival of Terms: These liability limitations will survive the termination of this Agreement.

4. Termination

4.1 Termination for Cause: Either party may terminate for material breach, given written notice and a grace period for correction (10 days for non-payment, 30 days for other breaches).

4.2 Suspension vs. Termination: We may suspend services for non-payment as an alternative to termination.

4.3 Billing Disputes and Credits: Billing/service disputes do not preclude service disconnection. Any credits due will be processed per section 2.

4.4 Reactivation: Reactivation post-disconnection requires payment of dues and a reactivation fee.

4.5 Notice of Termination: We accept written notice of termination by email, subject to our acknowledgment of receipt.

4.6 Early Termination Liability: Early termination by you (except for our material breach) or termination by us for cause will result in immediate payment of all fees, including the full term of the Agreement.

4.7 Survival of Termination Terms: These termination provisions will survive the termination of this Agreement.

5. Attorney Fees

5.1 The prevailing party in any legal proceeding related to this Agreement is entitled to recover costs and reasonable attorney fees.

6. Credit Checking

6.1 The Customer authorizes us to obtain credit history information from third parties.

7. 911 Dialing Notice & Terms of Service

7.1 911 Dialing is different than traditional 911 service. Due to a recent FCC ruling, you must acknowledge that you understand how our 911 Dialing works. Setting up your 911 Dialing is simple – fill out a short form in the Features section of your web account with your street address. You can easily update your address at any time through your web account.

7.2 Most of our customers (other than WiFi and Softphone customers) have access to either basic 911 or Enhanced 911 (E911) service. With E911 service, when you dial 911, your telephone number and registered address is simultaneously sent to the local emergency center assigned to your location. Customers in locations where the emergency center is not equipped to receive your information have basic 911.

7.3 Certain customers do not have access to either basic 911 or E911. If you don’t have access to basic 911 or E911, your 911 call will be sent to our national emergency call center. A trained agent will ask for your information and contact the local emergency center on your behalf.

7.4 You must register with Us the physical location where you will utilize our phone service for each phone line. If you move your device to another location, you must register your new location. Remember that our 911 Dialing service will not function in the event of a broadband or power outage.

8. Number Porting

8.1 We adhere to FCC local number portability rules, facilitating number retention under specified conditions.

8.2 Porting Process: Simple ports take one business day; complex requests take four business days.

8.3 Fees and Termination: Porting out incurs fees and terminates the associated service. Remaining services require standard notice for termination.

8.4 Financial Obligations: Customers must fulfill all financial obligations, including early termination fees, upon service termination.

9. Fair Use

9.1 Usage Monitoring and Acceptable Use:

• 9.1.1 We reserve the right to monitor usage of our services, including package and per-minute usage, to ensure compliance with acceptable use standards.
• 9.1.2 We may discontinue or block services without notice if usage exceeds acceptable limits.

9.2 Indicators of Abnormal Usage:

• 9.2.1 Excessive and consistent usage, unusual call patterns, and lack of continuous dialog activity may indicate use inconsistent with normal business operations.
• 9.2.2 Indicators include significantly higher aggregate usage than typical business usage, high frequency of short-duration calls, and other abnormal calling patterns.

9.3 Right to Action: We may review accounts for abnormal usage and take necessary actions, including immediate suspension if usage violates this policy or adversely affects our operations.

9.4 Response to Abnormal Usage:

• 9.4.1 If abnormal or impermissible usage is detected, we will attempt to inform the Subscriber and may provide an opportunity to correct the usage.
• 9.4.2 Persistent abnormal usage may result in termination of service or removal from the Unlimited Calling Plan, with or without notice.

9.5 Policy Amendments:

• 9.5.1 This policy is subject to revision at any time. Revisions will be communicated via our website under “Terms of Service/Policies” or through direct notification to Subscribers.
• 9.5.2 It’s the responsibility of the Subscriber to stay informed about any changes to this policy.

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