Master Services Agreement

Preamble

This Master Services Agreement is entered into between ICSDC Consultants Pvt. Ltd. (a company incorporated under the Companies Act, 2013, with registered office at D-331, Sector 108, Noida, UP-201304, India, hereinafter "ICSDC") and the Customer (name and details as entered during sign-up, hereinafter "Customer").

Recitals:

ICSDC commercially offers online services accessible through internet and other Internet Protocol communication links
Customer wishes to avail Services from ICSDC, and ICSDC has agreed to provide them
The Parties have mutually agreed that service provision shall be governed by this Agreement's terms and conditions

1Definitions and Interpretation

1.1 Defined Terms

(a) "Affected Party": means the Party claiming the benefit of Force Majeure.
(b) "Agreement": means this Master Services Agreement, the Service Level Agreement (SLA), and the Acceptable User Policy (AUP) collectively.
(c) "AUP": means the Acceptable User Policy attached as Annexure–2.
(d) "Business Day": means all working days of ICSDC except national and declared Holidays.
(e) "Due Date": means seven calendar days from the date of invoice by ICSDC.
(f) "Initial Term": means the agreed period of service provision mentioned in the Service Order Form from the Service Commencement Date.
(g) "Renewal Term": means rolling periods of mutually agreed length (or same as Initial Term) that automatically commence after Initial Term expiry, unless either Party provides notice at least thirty (30) days prior to cessation.
(h) "Service Catalogue": contains a list of services/facilities including backup, dedicated firewall, hardware monitoring, help desk support, server load balancer, network and power uptime, OS management, and shared firewall services as described in Schedule-A to the SLA.
(i) "Service Commencement Date": means the date ICSDC accepts the first purchase order issued by Customer.
(j) "Credits": means the entitlement of service extension to the customer.
(k) "Service Credits": means credits Customer is entitled to receive for ICSDC's failure to provide Services per SLA standards.
(l) "Service Level Agreement (SLA)": means the SLA annexed as Annexure-1.
(m) "Service Order Form (SOF)": means the customer-accepted services proposal document of ICSDC Consultants Pvt. Ltd.
(n) "Services": means: (i) Hosting services, server provision, and related services; (ii) Provisioning of virtual servers using hypervisor software from physical server clusters with/without operating systems and software; (iii) Colocation of customer-owned servers and related devices; (iv) Facilities detailed in the Service Catalogue; (v) Supplemental Services. All as set out in written purchase orders raised by Customer and accepted by ICSDC.
(o) "Supplemental Services": means additional services requested in writing by Customer beyond those already agreed, as set out in purchase orders.
(p) "Territory": means the geographical territory within the Union of India.
(q) "Account Manager": means the authorized representative or nominee of each party responsible for successful performance of obligations under this Agreement.

1.2 Interpretation

(a) Headings are for convenience only and do not define, confine, or limit the scope of this Agreement.

(b) Where a word or phrase is defined, other parts of speech and grammatical forms have contextually harmonious meanings.

2Terms Governing Provision of Services

2.1

The Parties agree this Agreement shall be read conjunctionally with purchase orders for Services issued by Customer and accepted by ICSDC, together constituting the terms and conditions for service provision.

3Services

3.1

Customer shall raise service orders on ICSDC for Service provision. Subject to Clause 3.3, ICSDC agrees to provide Services as set out in purchase orders from the Service Commencement Date until the end of the Initial Term, in accordance with Agreement terms.

3.2

ICSDC may provide Supplemental Services when requested by Customer and accepted by ICSDC. Consideration for such services shall be mutually agreed in advance.

3.3

ICSDC has the right to reject service orders if:

(a) Not in accordance with this Agreement
(b) For services/facilities not covered in the Service Catalogue
(c) Containing terms, conditions, or prices contrary to Party understanding
(d) At ICSDC's sole discretion

4Changes

4.1

If Customer requests changes resulting in increased ICSDC costs, requiring additional time, or otherwise adversely affecting ICSDC, the schedule, warranty, price, and other terms may be equitably amended by mutual written agreement. ICSDC shall not be obligated to proceed without such written amendments.

4.2

Notwithstanding anything herein, ICSDC may make material changes at any time during contract performance with Customer's prior consent, provided such changes do not:

Result in price increase
Extend performance time
Alter performance guarantees or warranty obligations

Customer shall fully cooperate and not unreasonably withhold consent.

4.3 Change Request Procedure

The following process applies when scope changes are required or desired:

A Change Request Procedure (CRP) communicates the change. The CRP must describe the change, the reasonable reason, and foreseeable effects.
The designated Account Manager of the requesting party reviews the proposed change and determines whether to submit it to the other party.
Both Account Managers review the proposed change and recommend further investigation or rejection. ICSDC will specify investigation charges. A CRP must be signed by Authorized Representatives from both parties to authorize investigation. The investigation determines effects on price, SLA, and other Agreement terms.
A written Change Authorization and/or CRP must be signed by Authorized Representatives from both parties to authorize implementation of investigated changes.

4.3.1 Change Initiation

A change is initiated by a Request for Change (RFC) initiated by Customer and informed to ICSDC in writing.

4.3.2 ICSDC Response

Within fourteen (14) days of receiving the RFC, ICSDC shall provide an estimation of time and effort required for RFC analysis. Following written approval and agreement to pay costs (if any), ICSDC shall within thirty (30) days or specified time period perform the analysis and effect the change.

4.3.3 Customer Approval

Customer approval is required for Change Impact assessment. When RFC requires changes in cost, SLA, or Agreement terms, the change must be expressly approved in writing by the Customer's authorized representative.

5Initial Term

5.1

The Initial Term commences on the Service Commencement Date. Customer acknowledges the provision of Services is subject to a minimum service period as mentioned in the Service Order Form ("Minimum Service Period"). Customer cannot terminate during the Minimum Service Period except per Clause 14.1(a). If Customer terminates before Minimum Service Period expiry, Customer agrees to pay early termination compensation equivalent to fees for the balance Minimum Service Period.

5.2

Upon Initial Term expiration and absent contrary communication, the Renewal Term automatically commences upon the same Agreement terms and conditions.

5.3

If a Party does not wish to extend/renew after the agreed term expiry, that Party shall send written notice of at least thirty (30) days prior to expiration to the other Party.

6Suspension of Services

6.1 Temporary Suspension Without Prior Notice

Customer agrees ICSDC may suspend Services without prior notice under unforeseeably contingent circumstances beyond ICSDC's control, including:

(a) ICSDC datacenter affected by viruses/malware
(b) "Network flooding" or "Distributed Denial of Services" attacks at ICSDC's datacenter or premises
(c) Hardware fault at ICSDC's datacenter
(d) Services being used by Customer in violation of AUP or Agreement terms
(e) To protect ICSDC-maintained servers in event of breakdown threat
(f) Earthquake, Fire, natural and manmade disaster, or any act of God under vis major
(g) Cases where suspension is required by law
(h) Such other circumstances as ICSDC may reasonably determine

6.2

Subject to Clause 6.1, Customer agrees Services may be suspended with at least seven (7) days' prior notice for Customer to remedy situations such as AUP violations, unauthorized use, or non-cooperation during investigation.

6.3

If Customer fails to fulfill payment obligations, ICSDC may suspend performance of Services or continue performance if ICSDC deems appropriate. If Customer defaults on payment obligations, Customer cannot claim Service Level Credits during the default period.

6.4

In event Services suspension is required as a result of ICSDC being unable to provide Services due to reasons not attributable to Customer, Customer shall be entitled to Service Level Credits per the SLA.

6.5

Customer shall be responsibly liable for payment of all fees and charges for Services incurred throughout the suspension period under Clauses 6.1, 6.2, and 6.3.

6.6

For suspension under Clause 6.3, ICSDC does not guarantee Customer data and file availability after suspension.

7Customer Obligations

7.1 Maintenance of Security

(a) Customer shall take all reasonable measures to ensure information transmitted to/from ICSDC servers is secure. Customer is solely responsible for activities under Customer's usernames, passwords, or accounts.

(b) Customer shall not use or permit use of Services for uploading, emailing, posting, publishing or transmitting data, content, or material for purposes that:

(i) Harass any person or cause damage/injury to persons or property
(ii) Involve defamatory, harassing, untrue, or obscene materials
(iii) Violate privacy rights or promote hatred or harm
(iv) Constitute unsolicited bulk e-mail, spam, or junk
(v) Infringe intellectual property or other third-party proprietary rights
(vi) Violate applicable laws

(c) The accuracy, veracity, legality, and validity of Customer data shall be Customer's exclusive responsibility.

7.2 Compliance with Law

Customer shall ensure it has taken all necessary and applicable permissions, approvals, and licenses from concerned authorities within or outside the Territory for availing ICSDC Services.

8Acceptable User Policy (AUP)

8.1

Customer shall utilize Services in accordance with the AUP (annexed as Annexure-2). ICSDC shall be entitled to modify the AUP from time to time, with amended versions made available on ICSDC's website and applicable to Service provision.

9Representations and Warranties

9.1 Customer Representations

Customer represents and warrants to ICSDC that:

(a) It has the legal right and authority to enter into this Agreement
(b) All information and disclosures respecting this Agreement are true and accurate
(c) It has taken all necessary authorizations and approvals for Agreement execution
(d) Customer shall not authorize any third person to access the Services unless approved in writing by ICSDC
(e) It owns and has right, title, ownership, and interest in contents, materials, and data running on or interfacing with the Services

9.2 ICSDC Representations

ICSDC represents and warrants to Customer that:

(a) It has legal right, authority, and authorization to enter the Agreement and provide Services
(b) Services provided do not violate any law or regulation in force
(c) All information and disclosures respecting this Agreement are true and accurate
(d) It has taken all necessary authorizations and approvals for Agreement execution
(e) It shall take all reasonable measures to ensure information transfer is secure
(f) It shall not derive any end user identifiable information from Customer's services/data flow

10Use of Services

10.1

Both Customer and ICSDC agree each party shall ensure specific security measures are scrupulously implemented. Each Party is responsible for security measure breaches to the extent caused by such Party's default.

10.2

Customer acknowledges that third-party software, applications, content, materials ("Third Party Materials") shall be at Customer's sole liability.

10.3

Customer acknowledges that if unsatisfied with delivered services, Customer shall responsibly inform ICSDC of deficiency within 3 days of commissioning. If Customer uses the commissioned set-up despite outstanding requests, Customer shall pay full charges from the first Commissioning Report.

11Indemnification

11.1

Customer agrees to indemnify ICSDC, its directors, employees, agents, and contractors against any breach under the Agreement or any third-party claim, compensation, or damages arising from infringement of any third party's copyright, intellectual property, trade secret, patent, trademark, or other proprietary rights.

11.2

The Indemnifying Party shall not be liable to indemnify the Aggrieved Party for infringement claims arising from Aggrieved Party modification of Items.

11.3

Customer shall not enter into, compromise, settle, or make liability admissions regarding compensation, damages, or claims without express ICSDC consent.

12Performance Warranties

12.1

ICSDC warrants that Services shall be performed per reasonable industry standard and substantially in accordance with mutually agreed specifications. This warranty is valid if any breach or deviation is notified within one (1) year from relevant Service completion or prior to termination/expiry of this Agreement, whichever is earlier ("Warranty Period"). Upon warranty breach, ICSDC's sole liability is to re-perform, correct, or make good defective Services.

12.2

The above warranty does not apply to failures caused by associated/complementary products, quality of products Customer uses, Force Majeure/vis major, or normal wear and tear.

12.3

Customer acknowledges that ICSDC shall not be liable for any Customer Data loss during Service availing unless Customer has opted for and availed backup and data assurance services from ICSDC.

12.4

THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE.

12.5

ICSDC provides no representation or warranty regarding products or services provided by others or non-signatory parties.

13Limitation on Liability

13.1

ICSDC's total liability on all compensation/damages claims of any kind shall in no case exceed the average price or fee exclusive of GST or similar Tax payable by Customer for Services over a three (3) month period during the one (1) year immediately before the liability arose.

13.2

In no event shall ICSDC, its employees, subcontractors, or suppliers be liable for any indirect, remote, special, consequential, incidental, or exemplary damages, loss of profits or revenue, loss of equipment use, capital cost, purchased power cost, substitute equipment/facilities/services cost, downtime costs, or customer claims.

14Termination

14.1 Termination by Customer

Customer may terminate the Agreement by immediate written notice to ICSDC if:

(a) ICSDC fails to provide Services as agreed, or
(b) ICSDC fails to comply with other Agreement terms and fails to cure within thirty (30) days from written notice

14.2 Termination by ICSDC

ICSDC has the right to terminate on immediate written notice to Customer when:

(a) Any payments payable by Customer have not been received within seven (7) days of the Due Date, or
(b) Customer fails to comply with Agreement terms and fails to cure within seven (7) days from written notice

14.3 Termination for Convenience

Subject to Clause 5.1, Customer may terminate for convenience by giving at least ninety (90) days' prior advance written notice. ICSDC is also reciprocally entitled to terminate for convenience with the same notice period.

15Effect of Termination

15.1

Upon Agreement termination becoming effective:

(a) ICSDC shall immediately cease providing Service(s) to Customer.
(b) Any and all Customer payment obligations for Services rendered shall immediately become due.
(c) Within three (3) days of termination, each Party shall return all Confidential Information.
(d) Customer shall remove all its equipment and materials from ICSDC's premises within ten (10) days of the termination effective date. Failure to remove within ten (10) days constitutes abandonment.

15.2

Termination shall not affect in any manner liabilities of a Party that accrued before the termination effective date.

16Confidentiality

16.1

Each Party ("Receiving Party") agrees it will not disclose to third parties any information belonging to the other Party. All such information shall be considered Confidential Information including prices, quotations, pre-execution negotiated issues, server configuration, and related information.

16.2

Notwithstanding the foregoing, neither Party has obligations regarding non-use or non-disclosure of confidential information which (i) is already known at disclosure time; (ii) is or becomes public domain; (iii) is independently developed; (iv) is disclosed to third parties without similar restrictions; or (v) is received from third parties without similar restrictions.

16.3

Each Party agrees not to disclose any Confidential Information obtained from the other to any third party unless law requires disclosure.

16.4

This Agreement's terms and conditions shall be considered Confidential Information. ICSDC shall be permitted to freely disclose that it is providing Services to Customer in its marketing materials.

17Data Privacy

17.1

Customer acknowledges that ICSDC may require to disclose Personal Information to ICSDC's affiliates and associates to carry out Services. ICSDC may also disclose Personal Information if required under applicable laws including law enforcement, fraud prevention, or other legal action.

17.2

Customer agrees ICSDC may disclose Personal Information to business partners to perform acts helping ICSDC to customize, analyze and/or improve Services.

17.3

Customer shall be deemed to have consented to Personal Information disclosure by providing such Personal Information during ICSDC's Service performance.

17.4

ICSDC may disclose any Customer-provided Personal Information if required by order/subpoena/summon under applicable law or to government agencies mandated under law.

18Assignment and Subcontracting

18.1

Customer shall not be entitled to assign the Services benefit or any obligations under this Agreement to any third party without ICSDC's prior written consent.

18.2

ICSDC may after notice to Customer engage a subcontractor to provide Services to Customer.

19Payments and Taxes

19.1

Fees that ICSDC shall charge for Services shall be agreed upon by the Parties from time to time and set out in the relevant purchase order.

19.2

Customer shall pay fees in accordance with ICSDC's invoices and any fees charged for Supplemental Services on or before the Due Date.

19.3

ICSDC shall send invoices to Customer via email/fax/post/courier to the designated invoicing address.

19.4 Delay in Payments

(a) If Customer disputes an invoice, Customer must notify ICSDC in writing within seven (7) calendar days of receipt and pay the undisputed amount on or before the Due Date.

(b) In case of undisputed payment delays, Customer is liable to pay compensatory interest at eighteen percent (18%) per annum on the unpaid amount.

(c) If undisputed invoices are not paid by the Due Date, ICSDC reserves its right to approach the NCLT/DRT or any other court of law deemed fit.

19.5

If Customer needs to provide information enabling ICSDC to avail tax benefits, Customer shall provide them timely.

19.6

If Customer is an unlisted company, ICSDC may conduct credit checks via Dun & Bradstreet, CIBIL, or similar agencies. If credit report is not per ICSDC expectations, payment terms shall be amended to require monthly advance payment.

19.7 Taxes

(i) Customer shall be responsible to remit all taxes to concerned appropriate authorities including any cess, surcharge, fine, penalty, or interest applicable to ICSDC's Service fees.

(ii) ICSDC shall fully cooperate with Customer by furnishing all timely-required information.

(iii) Customer shall provide GST details as required under the Goods and Services Tax Act, 2016, along with the Purchase Order.

20Notices

20.1

All Customer communications respecting this Agreement should be sent to ICSDC's sales department via electronic mail/fax/registered post/courier at:

ICSDC Consultants Pvt. Ltd.
D-331, Sector 108, Noida, Uttar Pradesh-201304
Attn: Mr. Suresh C Chhabra (Director)
Email: [email protected]

20.2

All ICSDC communications respecting this Agreement should be sent to Customer via electronic-mail/registered-post/courier at the address or email entered by the subscriber during sign-up.

20.3

A Party shall notify the other of any address or detail changes. Failure to notify constitutes a material breach entitling ICSDC to terminate the Agreement without any liability.

21Force Majeure / Vis Major

21.1

A Party shall not be liable to the other if its obligation performance is prevented, restricted, delayed, or interfered with due to circumstances beyond reasonable control, including legislation change, fire, flood, earthquake, explosion, epidemic, pandemic, accident, act of God, war, riot, terrorist activities, strike, lockout, and/or government act.

21.2

Upon Force Majeure occurrence, the Affected Party shall be excused from directly affected obligation performance (except payment obligations).

21.3

Either Party may terminate by written notice if the Force Majeure situation continues for more than thirty (30) days.

22Ownership

22.1

Each Party acknowledges and agrees that the other Party retains exclusive ownership and rights in its trade secrets, inventions, copyrights, and other intellectual property and any hardware provided by such Party.

22.2

Neither Party shall remove, misuse, or modify any copyright, trademark, or any other proprietary right of the other Party which is known by virtue of this Agreement, under any circumstances.

23Governing Law and Arbitration

23.1

This Agreement shall be governed by the laws of the Republic of India.

23.2

In case of any disagreement or dispute under this Agreement, the dispute shall be resolved as outlined hereunder.

23.3

The Parties shall make every effort to resolve amicably by direct informal negotiations any disagreement. If, after thirty (30) days from informal negotiation commencement, the Parties have not amicably resolved the dispute, such differences shall be referred to arbitration by a sole mutually agreed arbitrator, and in event of no consensus, the High Court of Delhi shall have sole jurisdiction to appoint an Arbitrator under the Arbitration and Conciliation Act (1996). Arbitration shall take place in New Delhi, India in English language.

24Miscellaneous

24.1 Solicitation

Customer agrees it will not compete with ICSDC and will not solicit any ICSDC employees during Agreement validity and up to twenty-four (24) months from Agreement expiry or termination.

24.2 Intellectual Property in Services

ICSDC is the sole owner of all patents, copyrights, trademarks, industrial designs, trade names, trade secrets, and all other intellectual property rights in Services.

24.3 Modification of Services and Amendment

This Agreement may be amended only by both Parties' written agreement.

24.4

There shall be no third-party beneficiaries to this Agreement.

24.5 Relationship Between Parties

The ICSDC and Customer relationship is that of independent contractors. Nothing creates partnership, agency, or joint venture.

24.6 MSME Act

Customer shall notify ICSDC in writing within thirty (30) days if Customer is qualified as a micro, small, or medium enterprise under the MSME Act, 2006, and agrees to waive MSME Act rights.

24.7 Stamp Duty

The Parties agree that applicable and payable Agreement stamp duty shall be borne by ICSDC.

24.8 Severability

If any Agreement provision is unenforceable, such unenforceability shall not affect any other provisions.

24.9 Non-Disparagement

Customer hereby agrees that it will not carry out disparagement, negative characterization, defamation, and/or any adverse public criticism of the Services.

24.10 Agreement

All Agreement annexures are hereby incorporated. The Agreement is the complete and exclusive Parties' subject matter agreement, supersedes and replaces any prior agreement.

24.11 Cumulative Remedy

No right or remedy made available is intended to be exclusive of any other right or remedy provided hereunder or available under Applicable Law.

24.12 Waiver

No failure or delay by either Party in exercising any right shall operate as a waiver of such right. Any waiver must be in writing by authorized personnel.

24.13 Survivability

All provisions regarding indemnification, liability limits, and confidentiality or proprietary rights shall survive Agreement termination.