Service Agreements
Master Service Agreement
THIS MASTER SERVICES AGREEMENT (the “Agreement”) IS ENTERED INTO BETWEEN:
TXP Tech, with offices at 8224 Espresso Dr., Suite #200, Bakersfield, California 93312 (“TXP Tech” or “Service Provider”), AND the undersigned customer (“Customer”).
This Agreement governs all services provided by TXP Tech to Customer.
1. Definitions
1.1 Definition of Service Provider
“TXP Tech” or “Service Provider” means TXP Tech and its parent companies, subsidiaries, affiliates, related entities, and any of their respective owners, officers, directors, employees, agents, and contractors.
2. Scope of Services
2.1 General Scope
This Agreement governs all services provided by TXP Tech, including but not limited to managed IT services, cloud services, Microsoft and third-party subscriptions, cybersecurity services, professional services, hardware as a service, and support services. Specific services may be further described in statements of work, service schedules, order forms, or addenda, which are incorporated by reference. Services may be provided on a managed, project-based, or time-and-materials basis, and all such services are governed by this Agreement unless expressly stated otherwise in writing.
2.2 Hardware as a Service (HaaS)
TXP Tech may provide hardware, equipment, or devices to Customer on a rental or subscription basis pursuant to a separate Hardware as a Service (“HaaS”) / Equipment Rental Addendum. Any such addendum is incorporated into this Agreement by reference. In the event of a conflict between this Agreement and the HaaS Addendum, the HaaS Addendum shall control with respect to the rented equipment; however, all limitations of liability, exclusions of damages, and risk allocations set forth in this Agreement shall apply to HaaS services.
2.3 Customer Environment Suitability
Customer acknowledges that TXP Tech’s ability to provide Services depends on the suitability of Customer’s existing environment. Services may be limited, excluded, or require remediation if systems, software, configurations, or network conditions are unsupported, end-of-life, insecure, or otherwise inconsistent with generally accepted industry practices. Any remediation or required upgrades may be quoted separately.
3. Microsoft and Third-Party Services
3.1 General
TXP Tech may resell or facilitate access to Microsoft and other third-party services. Customer acknowledges that TXP Tech does not own or operate such services and that applicable end-user license agreements, terms, and service level agreements are between Customer and the third-party provider. TXP Tech makes no warranties regarding third-party services, including uptime, availability, or security.
3.2 Microsoft Terms Authorization
Customer authorizes TXP Tech to accept Microsoft Customer Agreements, licensing terms, and related amendments on Customer’s behalf in connection with Microsoft products and services purchased or managed by TXP Tech. Customer acknowledges that Microsoft terms govern Microsoft services and agrees to be bound by them.
3.3 Microsoft New Commerce Experience (NCE)
Microsoft licenses purchased under Microsoft’s New Commerce Experience (“NCE”) are subject to commitment terms and rules defined by Microsoft. Customer acknowledges that NCE subscriptions may not be reduced or canceled during the active commitment period and that Customer remains responsible for all charges associated with such commitments, including licenses added by Customer or its authorized users.
3.4 Microsoft Azure Services
Azure services are consumption-based and billed based on actual usage as reported by Microsoft or its authorized distributors. Customer acknowledges that Azure services may be subject to minimum commitments, reservations, or early termination fees imposed by Microsoft. TXP Tech does not control Azure availability, performance, or pricing changes.
3.5 Microsoft-Only Support (Limited)
For Customers who purchase Microsoft licenses through TXP Tech but do not maintain an active Managed Services plan, TXP Tech may provide limited, complimentary break-fix support for Microsoft services only. Such support is limited to a maximum of two (2) hours per calendar month and is provided on a best-effort basis. Support does not include general IT support, device troubleshooting, network support, security remediation, training, or support for third-party applications or integrations.
4. Fees, Charges, and Payment Methods
4.1 General Fees and Payment
Customer agrees to pay all fees for Services, subscriptions, licenses, hardware rentals, and other charges as invoiced. Fees may include recurring monthly charges, usage-based charges, one-time fees, and third-party costs. TXP Tech may bill in advance for recurring Services and commitments. Usage-based and third-party charges will be billed as incurred. Payments may be made by approved methods including ACH, credit card, or other electronic payment methods accepted by TXP Tech. A processing fee of three percent (3%) may be applied to payments made by credit or debit card. ACH or check payments may be accepted without a processing fee. Declined or returned payments may incur a declined payment fee. Late payments may be subject to late fees and interest as permitted by law. TXP Tech may require updated payment information, prepayment, or suspend Services for delinquent accounts.
4.2 Suspension of Services
TXP Tech may suspend Services, in whole or in part, if Customer is delinquent in payment, presents a material security or operational risk, or otherwise materially breaches this Agreement. Suspension shall not relieve Customer of its payment obligations.
5. Termination and Cancellation
5.1 Termination for Cause and Cure
In the event either party materially breaches this Agreement, the non-breaching party shall provide written notice describing the breach. The breaching party shall have a reasonable opportunity to cure such breach within a commercially reasonable period after receipt of notice. This cure period shall not apply in cases involving fraud, willful misconduct, non-payment, or circumstances presenting an immediate security or operational risk.
5.2 Termination Without Cause
Unless otherwise stated in writing, either party may terminate Services without cause by providing no less than sixty (60) days’ written notice. Termination shall not relieve Customer of payment obligations for committed terms, subscriptions, licenses, third-party services, or Hardware as a Service.
5.3 License and Subscription Obligations Upon Termination
Termination of this Agreement or any Services does not automatically terminate or relieve Customer of its obligations for third-party licenses, subscriptions, or cloud services, including Microsoft licenses and Azure services. Customer remains responsible for all charges, commitments, and usage incurred through the end of any applicable subscription term, commitment period, or billing cycle as defined by the third-party provider. TXP Tech will, upon Customer’s written request and subject to applicable provider rules, assist with license or subscription changes; however, TXP Tech does not guarantee the ability to cancel, reduce, or refund third-party services. Third-party terms, including Microsoft’s licensing and subscription rules, control.
6. Limitation of Liability
6.1 Liability Cap
To the maximum extent permitted by law, in no event shall TXP Tech be liable for any indirect, incidental, special, consequential, or punitive damages, including but not limited to loss of profits, loss of revenue, loss of data, business interruption, ransomware payments, or loss of use, even if advised of the possibility of such damages. TXP Tech’s total cumulative liability arising out of or relating to this Agreement shall not exceed the total fees actually paid by Customer to TXP Tech for the services giving rise to the claim during the six (6) months immediately preceding the event giving rise to the claim.
6.2 Indemnification
Each party agrees to indemnify and hold harmless the other party from third-party claims arising out of its own gross negligence, willful misconduct, or material breach of this Agreement, to the extent permitted by law.
7. No Guarantee of Security; Best-Effort Protection
7.1 Security Acknowledgment
Customer acknowledges that while TXP Tech employs commercially reasonable, industry-aligned safeguards and security practices intended to reduce risk, no information technology environment or security solution can be made completely secure. Cyber threats continuously evolve, and absolute prevention of security incidents is not possible. TXP Tech’s Services are provided on a best-effort basis and are designed to reduce risk, not eliminate it. TXP Tech does not guarantee the prevention of cyber incidents, data breaches, malware, ransomware, or unauthorized access, and TXP Tech is not an insurer or guarantor against such events.
8. Customer Responsibilities
8.1 Customer Obligations
Customer remains solely responsible for its business operations, data integrity, regulatory compliance, employee actions, internal controls, and business continuity planning, including maintaining appropriate cyber insurance coverage.
9. Dispute Resolution
9.1 Resolution Process
In the event a dispute arises out of or in connection with this Agreement, the parties will attempt to resolve the dispute through good-faith consultation. If the dispute is not resolved, the parties may submit the dispute to mediation. If mediation is unavailable or unsuccessful, any remaining issues may be submitted to final and binding arbitration in accordance with the laws of the State of California. The arbitrator’s award will be final, and judgment may be entered upon it by any court having jurisdiction.
10. Governing Law
10.1 Applicable Law
This Agreement shall be governed by and construed in accordance with the laws of the State of California.
10.2 Force Majeure
TXP Tech shall not be liable for failure or delay in performance due to causes beyond its reasonable control, including acts of God, power outages, internet or carrier failures, labor disputes, supply chain disruptions, or governmental actions.
11. Severability
11.1 Severability
If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions will remain in full force and effect, and the invalid or unenforceable provision will be severed to the minimum extent necessary.
12. Entire Agreement and Order of Precedence
12.1 Entire Agreement
This Agreement, together with any Exhibits, Addenda, Statements of Work, and accepted order forms, constitutes the entire agreement between the parties regarding the Services and supersedes all prior or contemporaneous agreements or understandings. In the event of a conflict, the order of precedence shall be: (1) this Agreement, (2) applicable Addenda, (3) Exhibits, and (4) Statements of Work or order forms. For Customers subject to healthcare privacy or security regulations, the TXP Tech Healthcare & California Privacy Addendum (HIPAA/CMIA/CCPA) is incorporated herein by reference and applies solely with respect to regulated health information.
13. Assignment
13.1 Assignment
Customer may not assign this Agreement without TXP Tech’s prior written consent, which shall not be unreasonably withheld. TXP Tech may assign this Agreement in connection with a merger, reorganization, or sale of assets.
14. Transition Assistance
14.1 Transition Assistance
Upon termination, TXP Tech may, upon Customer’s written request, provide reasonable transition assistance at its then-current rates and subject to availability. TXP Tech is not obligated to provide data migration, third-party coordination, or post-termination support unless expressly agreed in writing.
15. Acceptance of Agreement
15.1 Acceptance
Signature by Customer, electronic acceptance, acceptance of any quote, order form, or statement of work, continued use of Services, or payment for services shall constitute acceptance of this Agreement and any incorporated documents.
Hardware as a Service (Haas) / Equipment Rental Addendum
This Hardware as a Service (“HaaS”) / Equipment Rental Addendum (the “Addendum”) is incorporated into and made part of the Master Services Agreement (the “Agreement”) between TXP Tech (“Service Provider”) and Customer. This Addendum applies solely when Customer rents, leases, or finances hardware or equipment from Service Provider. In the event of a conflict between this Addendum and the Agreement, this Addendum shall control with respect to rented equipment.
1. Eligibility Requirement
1.1 Eligibility for HaaS
Hardware as a Service (“HaaS”) is offered exclusively as an add-on to qualifying TXP Tech Managed Services plans, as designated by Service Provider from time to time. Customer must maintain an active, qualifying Managed Services plan for the duration of the HaaS term. Loss of eligibility, downgrade to a non-qualifying plan, or termination of Managed Services shall constitute a material change to service eligibility.
2. Ownership of Equipment
2.1 Title and Ownership
All hardware, equipment, peripherals, and accessories provided under a HaaS or rental arrangement (collectively, “Equipment”) shall remain at all times the sole and exclusive property of TXP Tech. Customer obtains no ownership, equity, or other proprietary interest in the Equipment.
3. Term and Payment Obligations
3.1 Rental Term and Fees
Equipment is rented for the full term specified in the applicable quote, order form, or service schedule. Rental fees are non-cancelable for the duration of the term. Early termination of any services shall not relieve Customer of its obligation to pay all remaining rental amounts due for the full term. In the event Customer no longer maintains a qualifying Managed Services plan, Service Provider may, at its discretion, require return of the Equipment; however, such change in eligibility shall not relieve Customer of its payment obligations for the full HaaS term.
4. Use, Care, and Restrictions
4.1 Permitted Use
Customer shall use the Equipment solely for lawful business purposes and in accordance with manufacturer specifications. Customer shall not sell, assign, sublease, encumber, relocate, modify, or permit third-party use of the Equipment without prior written consent from Service Provider.
5. Loss, Theft, or Damage
5.1 Customer Liability
Customer assumes all risk of loss, theft, or damage to the Equipment. In the event the Equipment is lost, stolen, or damaged beyond normal wear and tear, Customer shall be liable for the full replacement cost or repair cost, as determined by Service Provider, and such amounts may be invoiced immediately.
6. Insurance
6.1 Coverage Requirements
Customer is responsible for maintaining commercially reasonable insurance coverage sufficient to cover loss or damage to the Equipment. Upon reasonable request, Customer shall provide proof of such coverage to Service Provider.
7. Maintenance and Warranty
7.1 Warranty Scope
Unless otherwise stated in writing, Equipment support is limited to manufacturer warranty coverage only. Damage caused by misuse, accidents, environmental conditions, or unauthorized modifications is not covered and may result in additional charges.
8. Return of Equipment
8.1 Return Obligations
Upon expiration or termination of the rental term, Customer shall return all Equipment within ten (10) business days in good working condition, reasonable wear and tear excepted. Failure to return Equipment may result in additional fees, including the full replacement value.
9. Taxes
9.1 Tax Responsibility
Customer is responsible for all applicable sales, use, rental, property, or similar taxes arising from the rental of the Equipment, excluding taxes based solely on Service Provider’s income.
10. No Purchase Option
10.1 No Transfer of Ownership
Unless expressly agreed to in writing by Service Provider, no purchase, buyout, or ownership transfer option is provided or implied at the conclusion of the rental term.
11. Governing Law and Survival
11.1 Governing Law
This Addendum shall be governed by and construed in accordance with the laws of the State of California. The obligations set forth herein shall survive termination of the Agreement until all Equipment is returned and all outstanding amounts are paid in full.
Healthcare & California Privacy Addendum
This Healthcare & California Privacy Addendum (“Addendum”) is incorporated into and made part of the TXP Tech Master Services Agreement (“Agreement”) between TXP Tech (“Service Provider”) and Customer. This Addendum applies solely to Customers that are subject to healthcare privacy or security regulations.
1. Regulatory Scope
1.1 Covered Entities and Business Associates
Customer represents that it is a Covered Entity or Business Associate as defined under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), as amended by the HITECH Act, and implementing regulations.
1.2 TXP Tech as Business Associate
To the extent TXP Tech creates, receives, maintains, or transmits electronic protected health information (“ePHI”) on behalf of Customer, TXP Tech acts as a Business Associate solely for purposes of providing Services under the Agreement.
1.3 California Privacy Laws
This Addendum also addresses applicable California privacy laws, including but not limited to the California Confidentiality of Medical Information Act (“CMIA”) and the California Consumer Privacy Act, as amended by the California Privacy Rights Act (“CCPA/CPRA”), to the extent applicable.
2. Permitted Uses and Disclosures
2.1 Scope of Use
TXP Tech may use or disclose ePHI only as reasonably necessary to perform Services under the Agreement, support and secure Customer systems, or comply with applicable legal obligations. TXP Tech shall not use or disclose ePHI in a manner that would violate HIPAA or CMIA if performed by Customer.
3. Safeguards and Security Practices
3.1 Security Safeguards
TXP Tech will implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the confidentiality, integrity, and availability of ePHI, consistent with the HIPAA Security Rule and applicable California medical information security requirements.
3.2 Limitations of Security
Customer acknowledges that no information system can be guaranteed to be 100% secure. Safeguards are intended to reduce risk, not eliminate it. Services are provided on a best-effort basis and do not constitute a guarantee of regulatory compliance.
4. Security Incidents and Breach Notification
4.1 Breach Notification
TXP Tech will notify Customer without unreasonable delay upon discovery of a confirmed breach of unsecured ePHI, as defined under HIPAA, to the extent such breach is attributable to TXP Tech systems or Services.
4.2 Customer Notification Responsibilities
Customer remains responsible for determining reportability and for all regulatory, patient, or consumer notifications unless otherwise agreed in writing.
5. California Privacy Rights (CCPA/CPRA)
5.1 Service Provider Role
To the extent TXP Tech processes personal information subject to CCPA/CPRA on behalf of Customer, TXP Tech acts solely as a service provider or contractor. TXP Tech does not sell or share personal information and processes such information only to provide Services under the Agreement.
6. Subcontractors and Third-Party Providers
6.1 Subcontractor Obligations
Customer acknowledges that TXP Tech relies on third-party providers to deliver certain Services. Where required, TXP Tech shall ensure such subcontractors agree in writing to comply with the same restrictions and safeguards applicable to TXP Tech under this Addendum. TXP Tech does not control third-party compliance beyond the scope of its Services.
7. Customer Responsibilities
7.1 Customer Obligations
Customer is responsible for determining its compliance obligations, maintaining required policies and procedures, managing access controls and workforce training, and maintaining appropriate regulatory or cyber liability insurance. TXP Tech does not provide legal or compliance advice and does not guarantee compliance.
8. Term and Survival
8.1 Duration and Survival
This Addendum remains in effect for the duration of the Agreement solely with respect to Services involving ePHI or regulated personal information. Obligations relating to confidentiality and security survive termination as required by law.
9. Order of Precedence
9.1 Conflict Resolution
In the event of a conflict between this Addendum and the Agreement, this Addendum controls solely with respect to healthcare and privacy obligations. All other terms of the Agreement remain in full force and effect.
10. HIPAA-Required Business Associate Provisions
10.1 Required Provisions
To the extent required by HIPAA and its implementing regulations:
(a) TXP Tech shall ensure that any subcontractors that create, receive, maintain, or transmit ePHI on its behalf agree in writing to comply with the same restrictions and safeguards applicable to TXP Tech under this Addendum.
(b) TXP Tech shall make ePHI available to Customer as reasonably necessary to enable Customer to satisfy its obligations with respect to individual access requests under 45 CFR §164.524.
(c) TXP Tech shall assist Customer, upon reasonable request, with amendment of ePHI or accounting of disclosures, to the extent such information is maintained by TXP Tech, as required under 45 CFR §§164.526 and 164.528.
(d) Upon termination of Services involving ePHI, TXP Tech shall, at Customer’s option and to the extent feasible, return or securely destroy ePHI in its possession, except where retention is required by law. Any retained ePHI shall remain subject to this Addendum.
(e) TXP Tech shall make its internal practices, books, and records relating to the use and disclosure of ePHI available to the Secretary of the U.S. Department of Health and Human Services as required for purposes of determining compliance with HIPAA.
