TERMS AND CONDITIONS

These Terms & Conditions (“Terms”) apply to Client purchases from GXA Network Services, Inc (“GXA”) of services (“Services”), as well as licenses for software, hardware, support and maintenance services, and/or subscription services.  Client hereby engages and retains GXA to render Services or provide Product, as specifically set forth and limited in the “Master service Agreement” or subsequent Statements of Work (SOW), or any work order as agreed among by the Parties COLLECTIVLY HEREAFTER REFERRED TO AS “REQUESTED SERVICES” Except as otherwise stated therein, subsequent REQUESTED SERVICES” shall be made a part of and subject to these Terms. No Product or Services will be provided under these Terms alone but will require the execution of a written or electronic “REQUESTED SERVICES” each of which is deemed incorporated in these Terms for all purposes.  In the event of any conflict between the “REQUESTED SERVICES” and these Terms, the terms of the “REQUESTED SERVICES” will prevail over these Terms.

GXA may change these Terms from time to time by providing notification via e-mail 30 days before the changes are to become effective. Using the Services after the changes to these Terms become effective, means Client agrees to the new terms. If Client does not agree to the new Terms, Client must notify GXA in writing of its objection to the new Terms, and both Parties agree to terminate the Services if both Parties cannot come to a resolution to the objections.

GXA INFORMATION SECURITY AND QUALITY PROGRAM

ISO 9001 Certification. GXA maintains an ISO 9001 certification. GXA’s ISO 9001 certification signifies its unwavering commitment to consistently delivering high-quality products and services that exceed Client expectations. By partnering with GXA, Client can expect streamlined processes, enhanced efficiency, and increased customer satisfaction. GXA’s adherence to internationally recognized quality standards not only ensure regulatory compliance but also underscores its commitment as a reliable and trustworthy partner.

SOC2 Type 2 Report. GXA is actively working towards obtaining its SOC2 Type 2 report, anticipated to be completed by June 2024. This report will demonstrate GXA’s adherence to internal controls and comprehensive measures aimed at safeguarding Client data and enhancing the efficacy of its security protocols. The SOC2 Type 2 report serves as validation that GXA complies with industry-accepted standards, providing Clients with assurance that their partnership with GXA aligns with nationally recognized regulatory criteria. Additionally, it furnishes Clients with tangible proof of the existence of robust security measures, thereby mitigating their exposure to potential breaches and associated liabilities.

Click here (https://gxait.com/InfoSec) for more information about GXA’s Information Security program. 

GENERAL REQUIREMENTS & CONDITIONS.

1.1   System.  For the purposes of these Terms, “System” means, collectively, any computer network, computer system, peripheral or device that is tracked using GXA’s Remote Monitoring and Management tool.  To avoid a delay or negative impact on GXA’s provision of the Services, during the term of each “REQUESTED SERVICES” Client agrees not to modify the System unless both Parties agree to those changes.  Because changes to the System by Client could adversely affect confidentiality, availability and integrity of the System as well as the GXA’s ability to provide Services, GXA will not be held responsible or liable for changes made by Client on the System without GXA’s approval.

1.2 Maintenance; Updates.  If patches and other software-related maintenance updates (“Update(s)”) are provided under the “REQUESTED SERVICES”, GXA will install the Updates only if GXA has determined, that the Updates will be compatible with the configuration of the System and materially beneficial to the features or functionality of the affected software or hardware.  GXA will not be responsible for any downtime or losses arising from or related to the installation or use of any Update, provided that the Update was installed in accordance with the manufacturer and applicable vendor’s instructions and GXA conformed to generally accepted practices that meet or exceed industry standards.

1.3 Third-Party Service Providers.  “Third-Party Service Providers” means Services provided by an entity or a Party other than the GXA in fulfillment of the “REQUESTED SERVICES” requirements whose terms and conditions GXA and Client may be legally bound. For Example, Microsoft 365 services.

Clients right to use the Third-Party Services is subject to Client’s understanding of, compliance with and consent to these Terms and of any Third-Party agreements, which GXA does not have authority to vary, alter or amend.  

Therefore, GXA may utilize a Third-Party Service Provider to provide the Services in accordance with these Terms.  The Third-Party Service Provider may require the GXA to sign a contract with the Third-Party Service Provider for its services (“Third-Party Contract”) and the terms of the Third-Party Contract may impose conditions and requirements upon Client.  Access to the terms and conditions of any such Third-Party Contract(s) will be provided to Client through a link to its terms and conditions or EULA in the Master Service Agreement.  Client hereby agrees to review all Third-Party Terms and Conditions, and consent to those Third-Party Terms and Conditions which Client has consented GXA to contract upon its behalf.

The links are being provided as a courtesy, Client should monitor the links for the 3rd Party Providers to determine if they have the most current Terms and Conditions.

1.4 Third-Party Product Vendors. “Third-Party Product Vendors” means software, equipment and/or products inclusive of component parts purchased from vendors in fulfillment of the “REQUESTED SERVICES”. 

An example of a Third-Party Product Vendor is Dell Computers. 

GXA will use reasonable efforts to assign, transfer and facilitate all warranties (if any) for the Third-Party Product Vendor to Client, but will have no liability for the quality, functionality or operability of any Third-Party Products, and GXA will not be held liable as an insurer or guarantor of the performance, downtime or usefulness of any Third-Party Product.  Where applicable, a Third-Party Product Vendor may require the GXA to sign a contract with the Third-Party Product Vendor for its products (“Third-Party Contract”) and the terms of the Third-Party Contract may impose certain conditions and requirements upon Client.  Client hereby agrees to review all Third-Party terms and conditions, and consent to those Third-Party terms and conditions which Client has consented GXA to contract upon its behalf.  Third-Party Product Vendor terms and conditions link can be found at GXA website and/or IN “REQUESTED SERVICES”.

1.5 Third-Party Support.  If, a hardware or software issue requires vendor or OEM support, GXA may contact the vendor or OEM (as applicable) on Client’s behalf and pass through to Client all fees and costs incurred in that process.  GXA will obtain Client permission before incurring such expenses on Client behalf.

1.6 Subcontractors.  “Subcontractors” means third-party to whom GXA contracts to provide specified services to complete the services indicated in the applicable “REQUESTED SERVICES”.

1.7 Conditions of Service.  Client System is eligible for provision of GXA’s Services as outlined in the “REQUESTED SERVICES”, provided the System is in good condition and GXA’s serviceability requirements and site environmental conditions are met:

1.7.1 Client shall provide adequate workspace, heat, light, air conditioning, ventilation, electric current and outlets, internet, remote access, and long-distance telephone access for use by GXA’s representatives.

1.7.2 Client shall provide the GXA the right level of access to the System in order to affect the necessary monitoring and/or supplemental services.

It is the responsibility of Client to promptly notify GXA of any events/incidents that may impact the services defined within these Terms and/or any supplemental service needs.  

1.8 Hours of Service. GXA shall provide services as defined in the “REQUESTED SERVICES” as outlined below:

Day 

Time (CT)

Availability 

Monday – Friday

8:00 AM – 5:00 P.M. 

Unlimited remote service.  Unlimited onsite (DFW) support after remote troubleshooting. 

Monday – Friday 

5:01 PM – 7:59 A.M.

After Hours Unlimited remote support. Onsite (DFW) support provided on an as need basis for major network or server related critical issues that could affect business functions.

Saturday – Sunday

Office is Closed

Unlimited remote support. Onsite (DFW) support provided on an as need basis for major network or server related critical issues that could affect business functions.

Holidays

Office is Closed

Unlimited remote support. Onsite (DFW) support provided on an as need basis for major network or server related critical issues that could affect business functions.

1.9 Un-authorized Contacts. To minimize the risk of security incidents, potential adverse impact to Client’s System and assist GXA in providing a fast and effective response times, Client agrees that Client will inform GXA, before, permitting individuals that both Parties have not agreed upon as Authorized Contacts from making any modification, installation, or service performed on the System. 

Example of Authorized Contacts are Client’s internal IT Administrator and the GXA technical staff. 

Only Authorized Contacts will be eligible to access and service Client System.  Any unauthorized access or service conducted on the System without the explicit consent of both Parties, which results in negative System performance, will not be covered by the monthly plan fee as documented in the “REQUESTED SERVICES” and will be billed according to GXA’s standard labor rates as outlined in the “REQUESTED SERVICES” or subsequent SOW.

1.10 Service Sites. GXA shall provide Service only at (a) the authorized Client Locations (Service Site(s)) as identified in the “REQUESTED SERVICES”; and (b) Client systems as identified which is defined as Client covered devices in the Remote Monitoring Management (“RMM”) platform.  If Client desires to relocate, add or remove locations, Client shall give appropriate notice to GXA of Client’s intention to relocate sixty (60) days in advance.  GXA may renegotiate service terms with respect to any relocation and/or addition of locations by Client. 

1.11 Service Limitations. In addition to other limitations and conditions set forth in these Terms, the following service and support limitations are expressed:

1.11.1 Cost of consumables, replacement parts, hardware, software, network upgrades and associated project implementation services are outside the scope of these Terms.  

1.11.2 Any unauthorized changes made by Client to the System without GXA’s written consent which causes issues or failures to the System, are beyond the responsibility of GXA and Client will be billed the full cost to restore the System to its original state.

1.12 Support Level Goals:

Description 

Priority

Response

Escalation

A problem that affects the entire Client site or group of users that is significantly impacting business functions.

Critical

30 min

2 Hour

Problem with no known workaround that affects a single user or group of users and is impacting business operations.

High

1 hour

4 Hours

A general service request or problem with a workaround solution available. 

Medium

4 hours

8 Hours

A service request that does not require immediate resolution.

Low

24 hours

48 Hours

1:13: Scheduled Downtime. GXA regularly applies security patches to both workstations and servers. Our typical maintenance schedule is outlined below. However, GXA will discuss and agree upon a more specific maintenance window during the new Client onboarding phase.

Day

Time (CT)

Applies to

Monday – Sunday

10:00pm – 6:00am

Workstations and Laptops

Saturday – Sunday 

(Once per month)

10:00pm – 6:00am

Servers and Network equipment

Sunday (Once per month)

12:01am – 06:00am 

gCloud (Private Cloud Hosting)

1.12: Billing. Client has the option of paying by credit card (3% service fee applies), automatic withdrawal from checking (ach), or a paper check as methods of payment. Client will be provided with an invoice (“Invoice”) each month reflecting the amount due.  Payment is due thirty (30) days after the date of the Invoice, unless a different date is indicated on the Invoice (“Due Date”).                                                                               Any amounts unpaid after the Due Date shall bear interest at the rate of 1.5% monthly or at the highest rate allowed by law, whichever is less “(“Interest”).  Client shall be charged a late fee (“Late Fee”) of $25.00 for each day nonpayment of the full amount of the Invoice exceeds sixty (60) days after the Due Date.  Failure to pay an Invoice within ninety (90) days of the Due Date shall constitute an Event of Default.  

Bounced checks are subject to a $35.00 service charge.  

In the event Client defaults on an invoice (s), the Client will be responsible for all fees incurred by GXA to recover unpaid balances.   Non-payment could result in temporary suspension of services.

If Client in good faith disputes a fee or invoice, Client may withhold payment of the disputed fee or invoice, provided, however, Client: (i) timely pays all undisputed fees or Invoices; and (ii) provides GXA with a written explanation of Client’s reasons for disputing the fee or invoice.  Client and GXA agree to promptly resolve in good faith any disputed fee or Invoice. Interest and Late Fees shall be waived pending resolution of the dispute.

1.14: True Ups. “REQUESTED SERVICES” billing is generally based on the number of users and/or estimated needs of the Client at the time of its execution.  Fluctuations in the number of users and services is expected, GXA will work closely with Client, in good faith, to true-up and adjust the Monthly Service Fee on a regular basis. Client may contact GXA at any time and request an account true-up, which will not be unreasonably denied.

1.15 Taxes. It is understood that any Federal, State or Local Taxes applicable shall be added to each invoice for services provided. Client shall pay any such taxes unless a valid exemption certificate is furnished to GXA for the state of use.

1.16 Updated Rates. At the time of annual contract renewal, GXA rates will increase by 5% to factor in the rising inflation and cost of living adjustments.

1.17 Travel Expenses. GXA shall be reimbursed for travel and related expenses as follows beyond the Dallas Ft. Worth metropolitan area.

  • Meals, Mileage and Transportation
  • Lodging Expenses 

1.18 Third Party Providers(s). To enhance the Service Offerings provided by GXA to Client, GXA may utilize third-party providers for certain services. In addition to GXA, Client MAY BE legally bound to the third-party provider’s Terms and Conditions. Click on the links provided in the Master Service Agreement to access the Third-Party Providers EULA or Terms and Conditions. Client may also be subject to other agreements and documents presented by the third-party provider that are required to provide the services, each as amended by the third-party provider from time to time.

1.19 Termination Clause – Client may terminate this Master Service Agreement and subsequent SOW, if GXA commits any material breach and fails to cure such breach within thirty (30) days after receipt of written notice from Client.  

Agreement cannot be terminated while an active SOW or Order is in process or actively being worked on by GXA.  

Further, some of GXA’s Third Party Providers including Microsoft 365 have begun to charge annual Licensing Fees.  The services and products offered by these Third-Party Providers may require GXA to purchase certain “per seat” licenses from these Third-Party Providers to provide Client with these applications (i.e. Microsoft 365, Office 365). As per the Third-Party Providers’ requirements, the licenses potentially cannot be canceled once they are purchased and potentially cannot be transferred to any other MSP. 

If GXA, (with Client’s approval) purchases a Third Party Providers’ license for Client, and those licenses require a one (1) year term, Client understands and agrees that regardless of the reason for termination of the Managed-IT Services by GXA, Client is required to pay for all applicable Third Party Provider’s licenses per the schedule negotiated with the Third Party Provider for the entire term of those licenses. Once the licenses are paid up to the terms required by the Third-Party Provider, Client will be permitted to use the applicable Third Party Provider applications until the expiration of the license terms, even if Client moves to a different MSP.

1.20 Onboarding Process. Client acknowledges and agrees that GXA will have no responsibility for any deficiencies in the current operating systems and infrastructure until the GXA has had a fair and reasonable opportunity to properly onboard Client and conduct a comprehensive assessment of the current System (assessment is included as part of the onboarding process) and to provide Client with its recommendations, and Client has accepted and implemented same.

1.21 Offboarding Process. In the event of termination of Services by either party, GXA will make reasonable accommodations to transfer Client’s account to Client or Client’s new managed service provider or other authorized agent (the “Onboarding Provider”). Client shall indemnify and hold harmless GXA, its Subcontractors and their respective directors, officers, employees, consultants and agents for any claims or losses resulting from the activities of Client or the Onboarding Provider during the transition period from GXA to the Onboarding Provider, inclusive of when Client obtains access to all super administrator accounts of their infrastructure. Transfer will require that Client’s account be fully paid at time of transfer inclusive of any offboarding charges.

1.22 Network Devices, Hardware and Systems: GXA shall only be responsible for providing services to network devices, hardware and systems identified by both the Client and GXA and covered by Remote Management Monitoring (Hereafter referred to as RMM.) For the security of the Client, GXA shall have no responsibility for any devices, hardware or systems or damage resulting therefrom that are added to the System without GXA’s notification and allowing time for GXA to install RMM, security tools and ensuring device is properly patched. If Client obtains new devices, hardware or systems and wishes to request GXA’s services to extend to new devices, hardware or systems, said extension shall not take effect unless and until both Parties agree in writing and the device is added to the RMM and GXA’s other tools.

1.23 Authorized Contact(s).  Client understands and agrees that GXA will be entitled to rely on any directions or consent provided to GXA by any of Client Authorized Contacts.  If no Authorized Contact is identified, then Client Authorized Contact will be the person(s) (i) who signed the Quote, and/or (ii) who signed the SOW.  If Client desires to change Client Authorized Contact(s), please notify GXA of such changes in writing.

1.24 Separation of Duties (Shared Administrator Credentials). Shared administrative credentials pose many levels of security risk to Client and present compliance risk to Client. If Client shares server, network, or software application administrative credentials, GXA will not be held legally liable or responsible for any outages, errors, breaches, data loss and misconfiguration since multiple administrators from different companies jeopardizes the integrity of the support outlined in these Terms. 

  1. CONFIDENTIALITY AND MUTUAL NON-DISCLOSURE. 

2.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), in any format whether oral, written, electronic, or other, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.

2.2 Client Confidential Information shall include any personally identifiable information or protected health information of Client employees, Client customers, and Client Data. Client acknowledges and agrees that these Terms do not constitute a Business Associates Agreement (“BAA”) as that term is defined in the Health Insurance Portability and Accountability Act (HIPAA; Pub.L. 104–191, 110 Stat. 1936, enacted August 21, 1996 and as amended), and that the requirement for any such agreement in addition to these Terms may be necessary to provide the Services hereunder.  Client acknowledges and agrees that Third-Party Service Providers (defined in Section 1.3 above) and Third-Party Product Vendors (defined in Section 1.4 above) are not parties to these Terms or other agreement with GXA. Client must obtain a separate BAA with the Third-Party Service Provider or Third-Party Product Vendor. Client shall be solely responsible for the consequences, if any, of moving forward with the Services hereunder without such a BAA and shall be the sole judge of the necessity for a BAA in addition to these Terms. Furthermore, Client hereby agrees to defend, indemnify and hold harmless GXA and any affiliated company, and GXA’s respective present and former shareholders, officers, directors and employees and its attorneys and agents, and GXA’s predecessors, successors, insurers, assigns, heirs, executors and administrators (collectively referred to as the “Indemnitee”), from and against any and all claims, demands, causes of action, actions, judgments, liabilities, losses, costs and expenses, including attorneys’ fees and costs, as they occur, brought against, imposed upon, or incurred or suffered by, the Indemnitee which in any way relate to the failure of Client to comply with these Terms in proper handling of protected health information to the extent not caused by GXA’s gross negligence and/or due to the absence of any necessary BAA, or failing to notify GXA of the necessity of same.

2.3 Confidential Information of each Party shall include the terms and conditions of these Terms and all “REQUESTED SERVICES” as well as business and marketing plans, technology and technical information, products, services, product plans and designs, trade secrets, and business processes disclosed by such Party.

2.4 Confidential Information (other than Client Data) shall not include any information that: 

  1. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
  2. was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
  3. is received from a third-party without breach of any obligation owed to the Disclosing Party, or 
  4. was independently developed by the Receiving Party. 

2.5 Protection of Confidential Information. The Receiving Party shall:

(a) protect and safeguard the confidentiality of all Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care,

(b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Terms or otherwise in any manner to the Disclosing Party’s detriment, and

(c ) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, subcontractors and agents who need such access for purposes consistent with these Terms. 

2.6 Non-disclosure.  Neither Party shall disclose these Terms or any “REQUESTED SERVICES” to any third-party other than its affiliates, legal counsel, and accountants without the other Party’s prior written consent.

2.7 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a Party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

2.8 Return or Destruction of Confidential Information. Upon request, each Party agrees to promptly return the other Party’s Confidential Information in its possession, custody or control, or to certify the deletion or destruction of Confidential Information; provided, however, that the Receiving Party may retain a copy of any Confidential Information to the extent (a) required by applicable law or (b) it would be unreasonably burdensome to destroy.  In the event that return or destruction of Confidential Information is unduly burdensome, or not feasible, the Parties shall extend the protections of these Terms to the retained Confidential Information.

3. PROVISION OF MATERIALS AND SERVICES TO GXA. Client agrees to timely furnish, all personnel, all necessary computer hardware, software and related materials and appropriate and safe workspaces for purposes of GXA or its subcontractors, performing the Services.  Client will also provide GXA or its subcontractors, with access to all information, passwords and facilities requested by GXA that is necessary for GXA or its subcontractors, to perform the Services.  Client may deny access for any reason at any time, however if access to information, passwords or facilities is denied, Client understands that GXA or its subcontractors, may be unable to perform their duties adequately.and if such a situation should exist, Client will hold the GXA harmless.

4. RESPONSIBILITY FOR EQUIPMENT. Client acknowledges thatfrom time to time (a) GXA may identify additional items that need to be purchased by Client, and (b) changes in Client system may be required in order for GXA to meet Client requirements.  In connection therewith, Client agrees to work in good faith with GXA to effectuate such purchases or changes. If GXA is required to purchase any assets, including computer hardware and/or software, in connection with GXA providing the Services, all such assets will remain the sole property of GXA, except those assets sold by GXA to Client or procured by GXA on Client’s behalf shall be the sole property of Client.  Client will take such reasonable precautions to ensure the quality, completeness and workmanship of any item or equipment or hardware furnished by Client, and for ensuring that the materials provided to GXA or its subcontractors, do not infringe or violate the rights of any third-party.  Unless otherwise specified in the “REQUESTED SERVICES” that it is not the intent, nor does the GXA provide any type of backup of Client data. Client will maintain adequate backup for all data and other items furnished to GXA.

5. CLIENT DATA OWNERSHIP AND RESPONSIBILITY. Client shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of any data, information or material proprietary submitted by Client to GXA.

7. LICENSE AGREEMENTS.

  1. License. Subject to these Terms, GXA grants Client a perpetual, non-exclusive, non-transferable license to use all programming, documentation, reports, and any other product provided as part of the Services solely for Client own internal use.  At all times, all software on the System must be genuine and licensed, and Client agrees to provide GXA with proof of such licensing upon its request.  If GXA requires Client to implement certain minimum hardware or software requirements (“Minimum Requirements”), Client agrees to do so as an ongoing requirement of GXA providing its Services to Client.
  2. Pre-Existing License Agreements.  Any software product provided to Client by GXA as a reseller for a third-party, which is licensed to Client under a separate software license agreement with such third-party, will continue to be governed by the third-party license agreement.
  3. EULA.  Portions of the Services may require Client to accept the terms of one or more third-party end user license agreements (“EULAs”).  If the acceptance of a EULA is required to provide the Services to Client, then Client hereby grants GXA permission to accept the EULA on Client behalf. Example is Microsoft 365 EULA. EULAs may contain service levels, warranties and/or liability limitations that are different than those contained in these Terms.  Client agrees to be bound by the terms of such EULAs and will look only to the applicable third-party provider for the enforcement of the terms of such EULAs.  If, while providing the Services, GXA is required to comply with a third-party EULA and the third-party EULA is modified or amended, it may become necessary for GXA to modify or amend any applicable “REQUESTED SERVICES” with Client to ensure its continued compliance with the terms of the third-party EULA.  Client agrees to hold harmless and Indemnify GXA against Client violation of any of the terms and conditions included in the subject EULA. 

8. GXA’S EMPLOYEE’S, AGENTS OR SUBCONTRACTORS.  Client acknowledges that GXA has incurred substantial recruitment, screening, training, and administrative expenses with respect to its agents, including its employees and independent subcontractors. To the extent permitted by law from the Effective Date of the last SOW and up to two (2) calendar years after the date of termination of any “REQUESTED SERVICES”, Client shall not hire or contract directly or indirectly with any of the GXA’s employees, or subcontractors who have communicated with and/or worked on any Service for Client.  Client and GXA mutually acknowledge and agree that it would be impractical and extremely difficult to ascertain the amount of monetary damages that would be caused by a breach by Client of this provision.  Therefore, Client and GXA mutually agree that in the event of a breach by Client in any way of this provision, Client shall pay to GXA as liquidated damages, an amount equal to One Hundred Fifty Thousand Dollars ($150,000.00). This amount is an effort by both parties to properly and reasonably assess the damages that GXA would suffer as a direct result of a breach by Client, taking into account the following facts and circumstances: (a) an average employee working for GXA will generate significant net revenue for the GXA and remain employed by the GXA for an extended period of time; (b) GXA will lose significant revenue and incur significant costs in connection with attempting to replace such employee; (c) there is no guarantee that such employee can be replaced; and (d) accurately assessing the value of such employee to the GXA upon such breach is virtually impossible.  In light of these circumstances, Client and GXA mutually agree that these liquidated damages provision represents reasonable compensation to GXA for the losses that it would incur due to any such breach.  Client and GXA further acknowledge and agree that nothing in this paragraph shall limit GXA’s rights to obtain injunctive relief or any other damages including, but not limited to punitive, consequential, special, or any other damages, as may be appropriate in connection with Client breach of this section. 

9. WARRANTY.  GXA warrants that it or its subcontractors, will perform the services substantially in accordance with the specifications set forth whether under these Terms, “REQUESTED SERVICES” or otherwise in connection with any of them.  For any breach of the foregoing warranty, GXA or its contracted subcontractors, will exercise commercially reasonable efforts to re-perform any non-conforming services that were performed within the fourteen (14) business day period immediately preceding the date of Client’s written notice to GXA specifying in reasonable detail such non-conformance.  If GXA concludes that conformance is impracticable, then GXA will refund all fees paid by Client to GXA hereunder, if any, allocable to such nonconforming Services.

Notwithstanding any provision to the contrary in these Terms, any warranty offered and provided directly by GXA product shall be deemed null and void if the applicable product is (i) altered, modified or repaired by persons other than GXA, including, without limitation, the installation of any attachments, features, or devices not supplied or approved  by  GXA (ii) misused, abused, or not operated in accordance with the specifications of GXA or the applicable manufacturer or creator of the hardware or product, or, (iii) subjected to improper site preparation or maintenance by persons other than GXA or persons approved or designated by GXA.

Notwithstanding the above, GXA does not warrant its products or services beyond a reasonable standard or skill consistent with commercial industry standards.  GXA does not guarantee or promise any cost savings, profits, or returns on investment, delay in delivery or performance, including those delays caused by supply-chain delays or disruptions.  

10. CLIENT CYBER SECURITY. While GXA’s “REQUESTED SERVICES” provides basic security tools and some of the services may align with the NIST Cybersecurity Standard (https://www.nist.gov/cyberframework ) or other national security standards, its crucial to understand that solely opting for “REQUESTED SERVICES” does not provide effective and comprehensive security measures. Unless stated otherwise, the scope of services provided is strictly limited to those specified or agreed upon in subsequent Statements of Work (SOWs). Client acknowledges and accepts the possibility of security incidents, whether foreseeable or not, and is therefore highly encouraged to pursue comprehensive cybersecurity services by contacting GXA’s sister company Makaye (https://www.makaye.com), a managed cybersecurity firm.

12. REGULATORY COMPLIANCE. Any software or service provided by GXA is not intended to bring Client into full regulatory compliance with any rule, regulation, national standard or requirement.  The software, service, or solutions may aid Client’s efforts to achieve regulatory compliance, however, GXA does not provide comprehensive compliance solutions. Client is highly encouraged to pursue security compliance services by contacting GXA’s sister company Makaye (https://www.makaye.com), a managed cybersecurity firm.

13. UNAUTHORIZED INFORMATION TRANSFER.  In no event, except for the willful misconduct or gross negligence on its part, shall GXA or its subcontractors, whether under these Terms, a “REQUESTED SERVICES”, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses, including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach or other form of cyberattack, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if Client’s data or Systems are breached because of the distribution of and Client’s response to, unsolicited email, direct mail, facsimiles, unsolicited text messages, voice calls, telemarketing or because of the collection of information by means of any form of electronic malware, wiretapping, bugging, video cameras or identification tags.

14. EXTRAORDINARY EVENTS.  In no event, except for the willful misconduct or gross negligence on its part, shall GXA or its subcontractors, whether under these Terms, “REQUESTED SERVICES”   or subsequent SOW, other work order or otherwise in connection with any of them, be liable in contract, tort, third-party liability, breach of statutory duty or otherwise, in respect of any direct, indirect or consequential losses or expenses,including without limitation loss of anticipated profits, company shut-down, third-party loss or injury, any loss because of data breach, any loss of personally identifiable or protected information, goodwill, use, market reputation, business receipts or contracts or commercial opportunities, whether or not foreseeable, if such loss was the result of a cyberattack or any other event not contemplated by these Terms.

15. RELEASE WITH LIMITATION OF LIABILITY. THIS PARAGRAPH LIMITS THE LIABILITIES ARISING UNDER THESE TERMS OR ANY “REQUESTED SERVICES” OR IS A BARGAINED-FOR AND MATERIAL PART OF THESE TERMS.  THE PARTIES ACKNOWLEDGE AND AGREE THEY WOULD NOT ENTER INTO THESE TERMS UNLESS THEY COULD RELY ON THE LIMITATIONS DESCRIBED IN THIS PARAGRAPH. EXCEPT FOR GXA’S FRAUD, WILLFUL MISCONDUCT, OR GROSS NEGLIGENCE, CLIENT AND ANY OF CLIENT AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUCCESSORS AND  ASSIGNS AGREE  TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT AS OTHERWISE NOTED IN THESE TERMS, INCLUDING INDEMNIFICATION OBLIGATIONS, AGREE TO RELEASE THE GXA AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, SHAREHOLDERS, NOMINEES, CONSULTANTS, SUBCONTRACTORS, SUCCESSORS AND ASSIGNS FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSS, OR EXEMPLARY OR PUNITIVE DAMAGES. GXA’s AGGREGATE LIABILITY RELATING TO ANY OF THE SERVICES SHALL BE QUANTIFIED IN THE “REQUESTED SERVICES” OR GXA SHALL NOT BE LIABLE TO THE OTHER PARTY FOR ANY DELAY IN DELIVERY OR PERFORMANCE, OR FAILURE TO DELIVER OR PERFORM AT OR WITHIN THE DEADLINES SET FORTH IN THESE TERMS.

16. MUTUAL INDEMNIFICATION AND HOLD HARMLESS.  EACH PARTY AGREES TO THE FULLEST EXTENT PERMITTED BY LAW SHALL AT ALL TIMES DEFEND, INDEMNIFY, PAY, SAVE AND HOLD THE OTHER PARTIES AND ANY OF THEIR AFFILIATES AND EACH OF THEIR RESPECTIVE AGENCIES, EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, SHAREHOLDERS, NOMINEES, SUBCONTRACTORS, CONSULTANTS, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “MUTUALLY INDEMNIFIED PARTIES”) HARMLESS FROM EACH AND ANY AND ALL LIABILITIES, DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES), COSTS, EXPENSES, SUITS, CIVIL OR ALTERNATIVE DISPUTE RESOLUTION PROCEEDING, LOSSES, CLAIMS, ACTIONS, VIOLATIONS, FINES AND PENALTIES (INCLUDING WITHOUT LIMITATION, COURT COSTS, REASONABLE ATTORNEY’S FEES AND ANY OTHER REASONABLE COSTS OF LITIGATION) (HEREINAFTER COLLECTIVELY, THE “CLAIMS”) THAT ANY OF THE MUTUALLY INDEMNIFIED PARTIES MAY SUFFER, SUSTAIN OR INCUR TO THE EXTENT CAUSED BY THE NEGLIGENCE OF THE MUTUALLY INDEMNIFIED PARTIES ARISING OUT OF THESE TERMS.

THE PRECEDING INDEMNIFICATION OBLIGATIONS ARE CONDITIONED ON ANY OF THE INDEMNIFIED PARTIES: (I) NOTIFYING THE INDEMNIFYING PARTY PROMPTLY IN WRITING OF SUCH ACTION; (II) REASONABLY COOPERATING AND ASSISTING IN SUCH DEFENSE; AND (III) GIVING SOLE CONTROL OF THE DEFENSE AND ANY RELATED SETTLEMENT NEGOTIATIONS TO THE INDEMNIFYING PARTY WITH THE UNDERSTANDING THAT THE INDEMNIFYING PARTY MAY NOT SETTLE ANY CLAIM IN A MANNER THAT ADMITS GUILT OR OTHERWISE PREJUDICES THE INDEMNIFIED PARTY, WITHOUT CONSENT.

17. GXA INSURANCE.  GXA agrees to maintain sufficient insurance coverage to enable it to meet its obligations created by these Terms and by law.  Without limiting the foregoing, to the extend these Terms create exposure generally covered by the following insurance policies, GXA shall purchase and maintain: (i) general liability insurance in an amount no less than $2,000,000.00 per occurrence; (ii) professional liability insurance with minimum limits of liability of $2,000,0000 per claim/occurrence and $2,000,000 in the annual aggregate; and (iii) worker’s compensation insurance in compliance with applicable law. 

Upon request, GXA shall submit to Client a certificate of insurance naming Client and Client’s Mutually Indemnified Parties as additional insured on GXA’s general liability and professional liability policies.

19. CLIENT INSURANCE.

19.1 Commercial Property Insurance. Client shall secure at Client own cost and expense Property Insurance for Client equipment that is part of the provisions of the service agreement. 

19.2 Cyber and Privacy Insurance. Client acknowledges that Client is solely responsible for obtaining and maintaining, for the duration of these Terms, its own Cyber and Privacy Liability Insurance to adequately insure its cyber exposures. Specific limits and coverages should be evaluated by a qualified insurance broker or risk manager to determine Client’s specific coverage and policy limit requirements. Client acknowledges that GXA does not provide Client with any form of Cyber and Privacy Liability or other insurance coverage in connection with the Services or an executed “REQUESTED SERVICES” and that Client’s use of the Services does not, in any way: (i) replace a Cyber and Privacy Liability policy, (ii) mitigate Client’s need for Cyber and Privacy Liability insurance coverage or (iii) relieve Client’s responsibility for obtaining its own Cyber and Privacy Insurance coverage.

19.3 Mutual Waiver of Subrogation.  TO THE EXTENT PERMITTED BY LAW, EACH PARTY WAIVES ALL RIGHTS AGAINST THE OTHER FOR RECOVERY OF DAMAGES TO THE EXTENT THESE DAMAGES ARE COVERED BY THE WORKERS COMPENSATION (TO THE EXTENT PERMITTED BY LAW) AND EMPLOYERS LIABILITY, PROFESSIONAL LIABILITY, GENERAL LIABILITY, PROPERTY INSURANCE, COMMERCIAL UMBRELLA/EXCESS, CYBER AND PRIVACY OR OTHER COMMERCIAL LIABILITY INSURANCE OBTAINED BY EITHER PARTY. CLIENT WILL NOT HOLD GXA ITS SUBCONTRACTORS AND/OR THIRD-PARTY SERVICE PROVIDERS RESPONSIBLE FOR SUCH LOSSES AND WILL CONFIRM THAT CLIENT INSURANCE POLICIES REFERENCED ABOVE PROVIDE FOR THE WAIVER OF SUBROGATION INCLUDED IN THE TERMS OF SERVICE.

20. DISCLAIMERS. The express remedies set forth in these Terms will constitute Client’s exclusive remedies, and GXA’s sole obligation and liability, for any claim (a) that a Service or deliverable provided hereunder does not conform to specifications or is otherwise defective, or (b) that the Services were performed improperly.

EXCEPT FOR THE WARRANTIES MADE BY GXA IN SECTION 9, WHICH ARE LIMITED WARRANTIES AND THE ONLY WARRANTIES PROVIDED TO CLIENT, THE SERVICES AND DELIVERABLES ARE PROVIDED STRICTLY “AS-IS.”  GXA DOES NOT MAKE ANY ADDITIONAL WARRANTIES, EXPRESSED, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, OR STATUTORY, AS TO THE DELIVERABLES OR SERVICES PROVIDED HEREUNDER, OR ANY MATTER WHATSOEVER.  THE PARTIES DISCLAIM ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, TITLE AND NON-INFRINGEMENT.

GXA DOES NOT WARRANT THAT THE SERVICES OR ANY DELIVERABLES WILL MEET ANY OF CLIENT REQUIREMENTS NOT SET FORTH HEREIN, THAT ANY DELIVERABLES WILL OPERATE IN THE COMBINATIONS THAT CLIENT MAY SELECT FOR USE, THAT THE OPERATION OF ANY DELIVERABLES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.  IF PRE-PRODUCTION (E.G., “ALPHA” OR “BETA”) RELEASES OF SOFTWARE ARE PROVIDED TO CLIENT, SUCH COPIES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND.

No statement by any GXA employee or agent, orally or in writing, will serve to create any warranty or obligation not set forth herein or to otherwise modify these Terms in any way whatsoever. 

21. SEVERABILITY.  If any provision of these Termsis determined by a court of competent jurisdiction to be illegal or unenforceable, such provision shall be automatically reformed and construed so as to be valid, operative and enforceable, to the maximum extent permitted by law or equity while preserving its original intent. The invalidity of any part of these Terms shall not render invalid the remainder of the Terms.

22. AMENDMENT.  These Termsmay not be amended except by a writing executed by an authorized individual of the GXA.

23. RELATIONSHIP.  The Parties are independent parties; and these Termsdo not make the Parties principal and agent, partners, employer and employee; nor does it create a joint venture.  It is further understood that there is no relationship, including but not limited to a partnership, joint venture, subcontractor or other commission-based relationship, between any party that referred GXA or Client to the other party to these Terms.

24. LAW. These Termsshall be governed by and construed in accordance with the laws of the State of Texas without reference to principles of conflicts of laws.  The Parties irrevocably submit to the exclusive jurisdiction of the courts of the State of Texas.

25. WAIVER.  Failure by either Party to insist upon strict performance of any provision herein shall not be deemed a waiver by such Party of its rights or remedies, or a waiver by it of any subsequent default by the other Party.

26. FORCE MAJEURE.  Neither party will be liable to the other party for delays or failures to perform its obligations under this Agreement or any SOW because of circumstances beyond such party’s reasonable control. Such circumstances include, but will not be limited to, any intentional or negligent act committed by the other party, or any acts or omissions of any governmental authority, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, pandemic, disputes or differences with workmen, power failure, communications delays/outages, delays in transportation or deliveries of supplies or materials, cyberwarfare, cyberterrorism, or hacking, malware or virus-related incidents that circumvent then-current anti-virus or anti-malware software, and acts of God.

27. DATA ACCESS/STORAGE.  Depending on the Service provided, a portion of Client data may occasionally be accessed or stored on secure servers located outside of the United States. Client agrees to notify GXA if Client requires GXA to modify the GXA standard access or storage procedures.

28. ASSIGNMENT. Client may not assign Client rights or obligations under these Terms without GXA’s prior written consent which shall not be unreasonably withheld.