This Master Services Agreement is entered into on the subscriber has signed up for the services by and between ICSDC Consultants Pvt. Ltd., a company incorporated under the Companies Act, 2013 and having its registered office at D-331. Sector 108, Noida, UP-201304, India (hereinafter referred to as “ICSDC” which expression shall, unless repugnant to the context, include its successors in business, administrators, liquidators and permitted assignees or legal representatives) and CUSTOMER (name and details as entered by the subscriber during the sign-up process) and having its office at the address entered by the customer during the sign-up process (hereinafter referred to as the “Customer” which expression shall, unless repugnant to the context, include its successors in business, administrators, liquidators and permitted assignees or legal representatives).
ICSDC and Customer shall individually be called a “Party” and jointly as the “Parties”
1.1. Defined Terms: Capitalized terms used in this Agreement shall have the meanings assigned to them hereunder or in the relevant clauses of this Agreement.
(a) “Affected Party” means the Party claiming the benefit of Force Majeure.
(b) “Agreement” shall mean all this Master Services Agreement and the Service Level Agreement ‘SLA’ and the Acceptance User Policy ‘AUP’ collectively.
(c) “AUP” shall mean the Acceptable User Policy attached to this Agreement as Annexure–2 hereto.
(d) “Business Day” shall mean all working days of ICSDC except national and or declared Holidays.
(e) “Due Date” shall mean seven calendar days from the date of invoice by ICSDC.
(f) “Initial Term” shall mean the agreed period of provision of Service by ICSDC and thereby availing of provided service by Customer as mentioned in the Service Order Form from the Service Commencement Date.
(g) “Renewal Term” shall mean rolling periods of mutually agreed period between the parties or the same length as the Initial Term which shall automatically commence without perceptible interruption of the purveyed Service by ICSDC, after the expiry of the Initial Term unless notice is given by either Party in the manner described in Clause 20 (Notices) of this Agreement to stop the Services, at least thirty (30) days prior to expiry of Initial Term.
(h) “Service Catalogue” shall contain a list of all or any of the services/facilities viz., backup facility, dedicated firewall facility, hardware monitoring facility, help desk support, server load balancer, network and power uptime, OS management and shared firewall services etc. described in Schedule-A to the SLA.
(i) “Service Commencement Date” shall mean the date of acceptance by ICSDC of the first purchase order issued by Customer under this Agreement.
(j) “Credits” shall mean the entitlement of the extension of services to the customer
(k) “Service Credits” shall mean the credits which the Customer would be entitled to receive, on account of failure of the ICSDC to provide Services as per the standards mentioned in the SLA.
(l) “Service Level Agreement (SLA)” shall mean the Service Level Agreement annexed hereto as Annexure-1.
(m) “Service Order Form (SOF)” shall mean the customer accepted proposal document of services by ICSDC Consultants Pvt.Ltd..
(n) “Services” shall mean
(i) services such as the hosting services, provision of servers and other devices and other related services, and
(ii) provisioning of virtual servers using hypervisor software out of a cluster of physical servers with/without operating system and other software
(iii) colocation of customer owned servers and related devices.
(iv) facilities detailed in the Service Catalogue, and
(v) Supplemental Services, in all situations as set out in the written purchase order(s) raised by the Customer on ICSDC and accepted by ICSDC.
(o) “Supplemental Services” shall mean additional services which are requested for in writing by the Customer other than those already agreed to be provided by ICSDC, as set out in the written purchase order(s) raised by the Customer on ICSDC and accepted by ICSDC.
(p) “Territory” means the geographical territory within union of India.
(q) “Account Manager” shall mean the authorized representative or nominee of each party involved and or responsible of successful performance of the obligations under this agreement.
1.2 Interpretation
(a) The headings used in this Agreement are for convenience only and shall not in any manner and or way define, confine or limit the scope of this Agreement.
(b) In this Agreement, where a word or phrase is defined, other parts of speech and grammatical forms of that word or phrase shall have harmoniously contextual meaning.
2.1 The Parties agree that this Agreement shall be read conjunctionally with the purchase order(s) for Services issued by the Customer and accepted by ICSDC, and together they shall constitute the terms and conditions on which the Services shall be provided by ICSDC to the Customer.
3.1 Customer shall raise service orders on ICSDC for provision of Services. Subject to Clause 3.3, ICSDC agrees to provide Services, as set out in the purchase orders issued by Customer, from the Service Commencement Date until the end of the Initial Term, in accordance with the terms of this Agreement.
3.2 ICSDC may also provide Supplemental Services as and when requested for by the Customer and accepted by ICSDC. Consideration for such Supplemental Services shall be mutually agreed between the Parties in advance.
3.3 ICSDC shall have the right to reject the service order(s) on occurrence of any one of the conditions hereinafter (a) that is/are not in accordance with this Agreement, or (b) that is/are issued for services / facilities not covered in the Service Catalogue or (c) that contain terms and conditions or prices that are contrary to the understanding of the Parties or (d) at its sole discretion.
4.1 If Customer makes requests for any change whatsoever in the Services, and such change results in increased cost of any nature to ICSDC or will require additional time for performance of ICSDC’s obligations, or if ICSDC is otherwise adversely affected by such change, the schedule, warranty, price and other terms and conditions of the purchase order and Agreement may be equitably amended by mutual agreement of the Parties as detailed in clause 4.3. In no event shall ICSDC be obligated to proceed with any change unless the foregoing amendments have been agreed upon in writing by the Parties.
4.2 Notwithstanding anything contained in this Agreement, at any time during the performance of this contract in the event of material changes with prior consent of Customer, ICSDC reserves the right to make changes in design, construction, arrangement and provision of Services; provided such changes do not result in any increase in the price or time for performance or alter any performance guarantees or warranty obligations set forth herein. Customer shall fully cooperate and not unreasonably withhold its consent in the event of said material changes.
4.3 Change Request Procedure
The following process shall be followed in the event of a change in Scope of this document is required and or desired:
iii. Both Account Managers will review the proposed change and recommend it for further investigation or reject it. ICSDC will specify any charges for such investigation. A CRP must be signed by Authorized Representatives from both parties to authorize investigation of the recommended changes. The investigation will determine the effect that the implementation of the CRP will have on price, SLA and other terms and conditions of the Agreement.
4.3.1 Change Initiation
A change is initiated by a Request for Change (RFC) initiated by the Customer and informed to ICSDC in writing.
4.3.2 ICSDC Response
ICSDC, shall within fourteen (14) days of receiving the RFC, provide an estimation of the time and effort required in analyzing the RFC. Following receipt of the written approval of the estimate and agreement to pay the cost, if any, ICSDC shall within thirty (30) days or the time specified in the estimate, perform the analysis and effect the change.
4.3.3 Customer Approval
Customer approval is required for the assessment of Change Impact submitted by ICSDC. When the RFC requires a change in the cost or SLA or when a change is required in the Agreement successfully executed between Customer and ICSDC, the change must be expressly approved by the Customer authorized representative in writing. Once approved by Customer, the RFC is added to the Agreement. If the RFC is not approved by the appropriate authority, the ICSDC will take no action on the same.
5.1 The Initial Term for the Services shall commence on the Service Commencement Date. Customer acknowledges and accepts that the provision of Services by ICSDC shall be subject to a minimum service period as mentioned in the Service Order Form from the Service Commencement Date (“Minimum Service Period”). The Customer shall not be entitled to terminate this Agreement during the Minimum Service Period for any reasons whatsoever except for the sole reason as specified in Clause 14.1(a). Notwithstanding anything contained herein, if the Customer terminates this Agreement before the expiry of Minimum Service Period, then the Customer undertakes and agrees to pay ICSDC, on or before the effective date of termination of this Agreement, an early termination compensation of an amount equivalent to the fee payable for the balance period of the Minimum Service Period, calculated from the effective date of termination of this Agreement.
5.2 On expiration of the Initial Term and in absence of any communication in contrary from either Party, the Renewal Term shall automatically commence/continue, upon the same terms and conditions mentioned in this Agreement.
5.3 In the event a Party does not wish to extend/renew this Agreement after the expiry of the agreed term, that Party shall send a written notice of at least thirty (30) days prior to the expiry of the agreed term to the other Party. Upon receipt of said notice by the other Party on expiry of the Initial Term or a Renewal Term (as the case may be), the Agreement shall be deemed to have expired.
6.1 Temporary Suspension of Services Without Prior Notice:
Whereas ICSDC shall by all means ensure perpetuity and continuity of services by the Customer however under unforeseeably contingent circumstances, beyond the realm, of ICSDC, Customer agrees and accepts that ICSDC shall be entitled to suspend Services without any prior notice, inter alia including but not limited to any of the following circumstances:
(a) The ICSDC datacenter being affected by viruses/malware.
(b) “Network flooding” or “Distributed Denial of Services” attacks at ICSDC’s datacenter or work premises.
(c) Hardware fault at ICSDC’s datacenter.
(d) The Services being used by the Customer in violation of the terms and conditions mentioned in the AUP or this Agreement.
(e) To protect the servers maintained by ICSDC in the event of a threat of breakdown or where there is a valid reason to believe that not suspending the Services would cause loss to the other customers of ICSDC.
(f) Earthquake, Fire, natural and manmade disaster or any act of God under vis major.
(g) In cases where suspension is required by law; and
(h) In such other circumstances as ICSDC may reasonably determine and appropriately act upon.
ICSDC shall inform the Customer, as soon as possible, the reason of such suspension.
6.2 Subject to Clause 6.1 above, Customer agrees that the Services may be suspended by giving at least Seven (7) days prior notice for Customer to remedy a situation under circumstances such as the following:
(a) ICSDC has reason to believe that Services are being used by the Customer in violation of the terms and conditions mentioned in the Agreement including the AUP.
(b) ICSDC believes that the Services provided by ICSDC to Customer are being used by unauthorized persons without the consent of ICSDC.
(c) In situations where there is no co-operation from Customer during investigation of suspected violation of the Agreement; and
(d) In such other circumstances as ICSDC may reasonably determine and deem fit in larger interest to act upon.
6.3 Without prejudice to ICSDC’s rights of termination under Clause 14.2, if the Customer fails to fulfill its payment obligations, ICSDC may at its discretion:
(i) suspend performance of Services, or
(ii) continue performance of Services if ICSDC deems such continuance to be appropriate. Notwithstanding the foregoing, in the event of default in payment obligations by the Customer, the Customer shall not be entitled to claim Service Level Credits as set out in the SLA during such period of default.
In the event of suspension of the Service for the reasons as specified in this clause, the Services shall be reactivated only upon payment of outstanding dues in full by the Customer to ICSDC.
6.4 In the event suspension of Services is required,
(a) other than as provided in Clauses 6.1, 6.2 and6.3 above, and
(b) 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 as set out in the SLA. However, in the event of suspension of Services for the reasons as provided in Clauses 6.1, 6.2 and 6.3 above, Customer shall not be entitled to any Service Level Credits as set out in the SLA.
6.5 Customer agrees and acknowledges that in the event of suspension of Services for the reasons as specified in Clauses 6.1, 6.2 and 6.3 mentioned herein above, the Customer shall be responsibly liable for payment of all fees and charges for the Services incurred throughout the suspension period. Customer understands that ICSDC’s aforesaid right to suspend is in addition to its right to terminate under Clause 14 of this Agreement.
6.6 In the event suspension of Services is for the reasons specified in Clause 6.3, ICSDC does not guarantee and shall not be responsible/liable for availability of the data and files of the Customer after such suspension. ICSDC shall not be liable for any loss of business, data, content or files of the Customer upon such suspension.
7.1 Maintenance of Security
(a) Customer shall take all reasonable measures to ensure that the information transmitted to or from the servers of ICSDC with respect to the Services required by the Customer is secure. Customer shall duly authorize its employees and all third parties required to have any access to such servers. Customer shall require each person having access to such services to apply/follow all reasonable security and safety measures. ICSDC shall not be liable for any action taken by (i) such authorized person on the assets deployed for the Customer and (ii) individuals who were not authorized to have access to the servers and the Services but who were able to gain access owing to Customer’s fault/negligence (including disclosing of the usernames, passwords or accounts details and other security breaches by Customer as specified in Clause 10 below). Customer shall be solely responsible for the activities that occur under the Customer’s usernames, passwords or accounts or as a result of Customer’s or its authorized person’s access to the Services. Customer agrees to fully indemnify and hold harmless ICSDC for any claims or actions if any, arising out of the breach of this provision by the Customer.
(b) Customer shall not use or permit use of the Services, inter alia including by uploading, emailing, posting, publishing or otherwise transmitting any data or content or material, including Customer Data, for any purpose that may
(i) harass any person or cause damage or injury to any person 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) constitute an infringement of intellectual property or other proprietary rights of a third party, or
(vi) violates applicable laws for the time being in force.
Without prejudice to the rights of ICSDC accrued under this Agreement and future rights, ICSDC reserves the right without any liability whatsoever in advising the Customer to take remedial action if any data or content or material violates the foregoing restrictions including the removal or disablement of access to such data or content or material. Customer agrees to fully indemnify and hold harmless ICSDC against any claims arising out of a violation of this provision by the Customer.
(c) The accuracy, veracity, legality and validity of the data or contents provided by the Customer and/or its authorized person and transmitted to or from the servers of ICSDC, by virtue of being hosted on ICSDC servers and in the database of ICSDC shall be the exclusive responsibility of the Customer. The Customer acknowledges that ICSDC is solely hosting data and/or information on the Customer’s and/or its authorized representative’s instructions, and any action on such instructions and the result thereof shall be the sole liability of the Customer. ICSDC shall not be liable for (i) any false and/or inaccurate and/or illegal data transmitted to or from the servers of ICSDC or by virtue of being hosted on ICSDC servers, and (ii) any outcome and/or result of such processing, transmitting to or from the servers of ICSDC, by virtue of being hosted on ICSDC servers and in the database of ICSDC.
7.2 Compliance with law
Customer shall ensure that it has taken all necessary and applicable permissions, approvals, licenses from concerned authority(ies) as applicable within or outside the Territory for availing the Services to be provided by ICSDC. Customer shall at all times comply with all applicable laws.
8.1 Customer shall utilize the Services in accordance with the ‘AUP’. The existing ‘AUP’ is annexed to this Agreement as Annexure-2. ICSDC shall be entitled to modify the ‘AUP’ from time to time and such amended ‘AUP’, shall be made available on the website of ICSDC, applicable in relation to provision of the Services by ICSDC to Customer.
9.1 Customer represents and warrants to ICSDC CONSULTANTS Pvt. Ltd. as follows;
(a) It has the legal right and authority to enter into this Agreement and is not barred by any agency or authority in or outside the Territory to enter into this Agreement.
(b) All the information and disclosures made in respect to this Agreement are true and accurate.
(c) It has taken all necessary authorizations and approvals for the purpose of execution of this Agreement.
(d) Customer shall not authorize any third person to have access to the Services unless itis approved in writing by ICSDC.
(e) It owns and has the right, title, ownership and interest in the contents, materials and the data (including the Customer Data) which runs on the Services or causes to interface with the Services, or which is uploaded for the Services or posted or submitted or otherwise used during availing of the Services by the Customer
9.2 ICSDC represents and warrants to Customer as follows:
(a) It has legal right, authority and authorization to enter into the agreement and to provide the Services as required by the Customer.
(b) Services provided by ICSDC are not in violation of any law or regulation(s) in force.
(c) All the information and disclosures made in respect to this Agreement are true and accurate.
(d) It has taken all necessary authorizations and approvals for the purpose of execution of this Agreement.
(e) It shall take all reasonable measures to ensure that information transfer (within ICSDC’s area of influence and Domain) to and from Customer’s materials is secure and it shall not use, analyze or access Customer data traffic or any other data except for the limited purposes necessary for undertaking its contractual obligations as set out herein.
(f) It shall not derive any end user identifiable information from the Customer’s services/Customer’s data flow.
10.1 Both Customer and ICSDC agree that each party shall ensure that specific security measures (if opted for by the Customer) such as maintaining firewalls, confidentiality of passwords to the servers, not providing access to the Services to any third party, etc., are scrupulously implemented. Each Party shall be responsible for breach of foregoing security measures, to the extent such breach has been caused by such Party’s default in maintaining the above security measures.
10.2 Customer acknowledges and understands that the software and software applications including content, materials, data, images, text, audio, video etc. provided by a third party (whether directly by third party or ICSDC procuring the same on Customer’s instruction and or behalf) (“Third Party Materials”) for the provision of Service shall be at sole liability of Customer.
10.3 Customer also acknowledges that in case the Customer is not satisfied with the delivered services, Customer shall responsibly inform ICSDC of the deficiency within 3 days of the commissioning Date. Upon receipt of the said deficiency, ICSDC shall suspend all Services, make good the deficiency and release the environment once again with a new Commissioning Report. In such case, the latter shall be regarded as the Billing Start Date. Further, if the Customer uses the commissioned set-up, though he has a few outstanding requests, Customer shall pay full charges from the first Commissioning Report, unless partial billing is mutually agreed between the parties, before the Customer starts using the Services. If no partial billing agreement has been reached and if Customer uses the Services even after raising objections, Customer shall pay in full without any deductions whatsoever from the first date of Commissioning Report
11.1 The Customer agrees to indemnify ICSDC their directors, employees, agents and contractors against any breach committed under the Agreement, or any third-party claim, compensation, damages arising out of or in relation to infringement and or infraction of any third party’s copyright, intellectual property, trade secret, patent, trademark or any other propriety rights.
11.2 The Indemnifying Party shall not be liable to indemnify the Aggrieved Party under Clause 11.1 in respect of an infringement and or infraction claim for compensation, damages mentioned therein in relation to materials, services, information or other work (“Items”) provided by the Indemnifying Party (a) arising as a result of the Aggrieved Party modifying the Items, or (b) to the extent that the infringement and or infraction claim for compensation, damages arises as a result of the Aggrieved Party’s use of the Items together with products and or Services not delivered and or provided by the Indemnifying Party or (c) as a result of an application or use of the Items by Aggrieved Party that is not agreed between the Parties under this Agreement.
11.3 The Customer shall not enter into, compromise and or settle any claim for compensation, damages or make any admission ascribing any liability whatsoever on ICSDC without the express consent of ICSDC, unless such compromise or settlement has the effect of relieving ICSDC from all claims of compensation, damages made against it.
12.1 ICSDC warrants that the Services shall be performed as per reasonable industry standard and substantially in accordance with any and all mutually agreed specifications. The foregoing warranty shall be valid, provided any breach and or deviation thereof is notified within one (1) year from the completion of the relevant Service or prior to termination/expiry of this Agreement, whichever is earlier (hereinafter “Warranty Period”). Notwithstanding anything contained herein, no agent, or employee of ICSDC is authorized to make any modification, alteration, extension or addition to said warranty or offer a different warranty. Upon any breach of such warranty, the only liability of ICSDC is to re-perform, correct and or make good any defective Services to the extent necessary and technically and commercially feasible.
12.2 In no event does the above warranty apply to
(i) any failure or nonconformance of the Services with specifications (as provided in the Agreement or otherwise) caused by or attributable to any associated or complementary products not supplied, delivered, provided under the Agreement,
(ii) the quantity or quality of the products used by the Customer to avail the services of ICSDC Consultants Pvt. Ltd.,
(iii) damage, fault, failure or malfunction due to Force Majeure/Vis Major or normal wear and tear,
(iv) any attempt by any person other than the ICSDC personnel or any person authorized by ICSDC, to perform all or part of the Services and. The warranty and remedies are conditional upon
(a) conformance with any applicable recommendations of ICSDC, and
(b) Customer promptly notifying ICSDC of any defects and or shortcomings in Services.
The Customer acknowledges that there are inherent risks in internet connectivity outside the purview of ICSDC’s sphere and or domain of influence that may result in the loss inter alia of Customer’s privacy, confidential information, and property. Customer acknowledges that ICSDC does not control the transfer of data over communications facilities, including the internet, and that the Services may be subject to limitations, shortcomings, delays, and other problems inherent in the use of such communications facilities. ICSDC shall not be responsible in any manner for any delays, delivery failures, or other damage resulting from such problems. It is well understood between the parties that ICSDC shall not be responsible for any issues whatsoever related to the performance, operation or security of the Services that arise from and or are attributed to the Customer’s content, applications or third-party materials whatsoever.
12.3 The Customer acknowledges and understands that ICSDC shall not be privy to any data and/or information of the Customer (“Customer Data”) on account of provision of Services as it is solely responsible for hosting of the Customer Data only. ICSDC shall not be liable in any manner for any loss of Customer Data in any manner while availing the Services from ICSDC unless until the Customer has opted for and availed the Services from ICSDC for the data backup along with the data assurance services. Under no circumstances will ICSDC have any liability or responsibility for (i) the loss of Customer Data or other information unless caused by the proved gross negligence or willful misconduct of ICSDC; and (ii) security breaches, viruses, hacked servers, worms, or corrupted data including Customer Data, unless caused by the proved gross negligence or willful misconduct of ICSDC.
12.4 The foregoing paragraphs set forth the exclusive remedies available to the Customer and the sole liability of ICSDC for claims of compensation, damages arising out of the failure of, or defect in, Provisioned Services, whether such claim for compensation, damages are based on contract, law, indemnity, warranty, specific performance tort (including negligence), strict liability or otherwise. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL, IMPLIED (BY STATUTE, COMMON LAW, TRADE USAGE, COURSE OF DEALING OR OTHERWISE) OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. ICSDC does not provide any representations or warranties other than or besides those set out expressly in preceding Clause 12.1.
12.5 ICSDC does not provide herein any representation or warranty in respect of any products or services provided by others and or parties not signatory to this Agreement. ICSDC shall have no obligation for loss, liability or damage which is as a result of, because (1) Customer fails to utilize, operate or maintain the Services or any materials or equipment in connection with the Services in accordance with (i) applicable law and generally approved industry practices or (ii) the provisions of this Agreement or (iii) the provisions of any storage, operating or maintenance instructions furnished to Customer or (2) Customer breaches applicable law. Customer agrees to fully indemnify ICSDC against any loss, liability, harm or damage that ICSDC may suffer as a result of Customer’s failure or breach as described in this clause.
13.1 The total liability of ICSDC, its employees, subcontractors, or suppliers on all claims for compensation. damages of any kind and or sort, whether based on contract, law, indemnity, warranty, specific performance, tort (including negligence), strict liability or otherwise, resulting from this Agreement, its performance or breach, or from any services covered by or furnished under or in relation to this Agreement or any extension or expansion thereof (including remedial warranty efforts), shall in no case exceed in any manner the average price or fee exclusive of GST or similar Tax payable by Customer paid for Services over a three (3) month period during the period of one (1) year immediately before the liability arose.
13.2 In no event, whether in contract, indemnity, warranty, specific performance, tort (including negligence), strict liability or otherwise, 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 use of equipment being worked on or any associated equipment or facilities; cost of capital; cost of purchased power; cost of substitute equipment, facilities or services; downtime costs; any special, consequential, incidental or exemplary damages; or claims of customers of Customer for any of the foregoing items, and Customer shall fully indemnify ICSDC, its employees, subcontractors and suppliers against any such claims from Customer’s customers.
14.1 Termination by Customer
Customer may terminate the Agreement by immediate written notice to ICSDC if:
(a) ICSDC fails to provide the Services as agreed; or
(b) ICSDC fails to comply with any other terms of this Agreement other than provision of Services, and fails to cure, remedy the defect in the Services or its non-compliance with any other terms of this Agreement, within a period of thirty (30) days from the date of written notice issued by the Customer asking it to cure such defect or non-compliance.
14.2 Termination by ICSDC
ICSDC has the right to terminate the Agreement on immediate written notice to the Customer when:
(a) any payments to ICSDC payable by Customer have not been received by ICSDC within seven (7) days of the Due Date; or or
(b) when the Customer fails to comply with the terms of this Agreement and fails to cure such non-compliance within a period of seven (7) days from the date of written notice issued by ICSDC asking it to cure such non-compliance.
14.3 Termination for convenience
Subject to Clause 5.1 herein above, Customer may terminate this Agreement for its convenience without providing any reasons by giving the other at least ninety (90) days prior or advance written notice. ICSDC is also reciprocally entitled to terminate the Agreement for its convenience without providing any reasons by giving the Customer at least ninety (90) days prior or advance written notice.
15.1 Upon the termination of this Agreement becoming effective:
(a) ICSDC shall immediately cease providing the Service(s) to the Customer.
(b) Any and all payment obligations of Customer under this Agreement for Service(s), in proportion to the Services rendered till the effective date of termination, notwithstanding to any previously agreed credit period between the parties shall immediately become due;
(c) within three (3) days of termination of this Agreement, each Party shall be under an obligation to return all Confidential Information of the other Party in its possession without trustfully retaining any copies of such Confidential Information except as required in compliance with any applicable legal or accounting, record keeping requirement.
(d) Customer shall remove all its equipment and materials from ICSDC’s premises within ten (10) days of the effective date of termination. Unless ICSDC agrees otherwise in writing, failure to remove Customer’s equipment and materials, by the Customer within ten (10) days from the effective date of termination, shall constitute abandonment of Customer’s equipment and material and it is well understood that Customer shall lose all rights whatsoever in respect thereof. ICSDC shall be entitled to pursue available legal remedies, including, without limitation and at Customer’s risk and expense:
(i) immediately removing Customer’s equipment and material and storing it at Customer’s expense at an on-site or off-site location; (ii) shipping it to Customer; or
(iii) upon thirty (30) days’ prior written notice to Customer, liquidating it, and retaining/appropriating to itself the proceeds thereof.
15.2 Termination shall not affect in any manner the liabilities of a Party that accrued before the effective date of termination.
16.1 Each Party (“Receiving Party”) agrees that it will not disclose to third party(ies) any information belonging to the other Party (“Disclosing Party”) which is provided to it by the Disclosing Party before, during and after the execution of this Agreement. All such information belonging to the Disclosing Party and provided to the Receiving Party shall be considered Confidential Information. Confidential Information includes prices, quotations, negotiated issues made before the execution of the Agreement, server configuration, design and other related information and information relating to the contents to be transmitted to and from the servers of ICSDC or Customer. All information provided by a Party to the other shall be considered confidential even if it is not conspicuously marked as confidential.
16.2 Notwithstanding the foregoing, neither Party shall have any obligations regarding non-use or non-disclosure of any confidential information which (i) is already known to the Receiving Party at the time of disclosure; (ii) is or becomes part of the public domain without violation of the terms hereof; (iii) is shown by conclusive documentary evidence to have been developed independently by the Receiving Party without violation of the terms hereof; (iv) is disclosed by the Disclosing Party to a third party without similar restrictions on the third party’s rights; or (v) is received from a third party without similar restrictions and without violation of this or a similar agreement.
16.3 Each Party agrees not to disclose any of the Confidential information obtained from the other under any circumstances to any third party unless it is so required by law to be disclosed or if it falls under any of the exceptions mentioned in Clause 16.2 above. Any disclosure to be made by the Customer as per the requirements of law shall be so disclosed on providing reasonably advance notice to ICSDC with the reasons for such disclosures.
16.4 The terms and conditions of this Agreement, and all annexes, attachments and amendments hereto and thereto shall be considered Confidential Information. No news release, public announcement, advertisement or publicity concerning this Agreement and/or its contents herein shall be made by either Party without the prior written approval of the other Party unless such disclosure or public announcement is required by applicable law. Notwithstanding any provision to the contrary, ICSDC shall be permitted to freely disclose the information that it is providing / has provided the Services to the Customer in its marketing, promotion or other materials.
17.1 The Customer acknowledges that ICSDC may require to disclose information and data provided to it by Customer, including information that identifies an individual or a person either directly or indirectly and alone or in combination with other information available (such identifying information being referred to as “Personal Information”), such as a person’s name, phone number and email address, to ICSDC’s affiliates and associates to carry out Services under this Agreement. ICSDC may also disclose Personal Information obtained from Customer if required under applicable laws including in connection with law enforcement, fraud prevention, or other legal action, or as required by law or regulation, or if it reasonably considers it necessary to protect ICSDC, its customers, or the public.
17.2 In addition, Customer agrees that ICSDC may disclose such Personal Information to its business partners in order to perform acts that help ICSDC to customize, analyze and/or improve its Services and its communications with Customer, provided that all such business partners observe in letter and spirit the ICSDC’s commitment to protect such Personal Information.
17.3 The Customer shall be deemed to have consented to disclosure of Personal Information by ICSDC to its affiliates and business partners by providing such Personal information to ICSDC in the course of ICSDC’s performance of the Services.
17.4 ICSDC may disclose any Personal information provided by Customer (a) if required to do so by an order/subpoena/summon under applicable law; or (b) to government agencies mandated under law to obtain such information for the purpose of verification of identity, or for prevention, detection or investigation including of any real or suspected event in relation to cyber-security. No further consent will be required to be obtained by ICSDC from the Customer for any of the aforesaid disclosures.
18.1 Customer shall not be entitled to assign the benefit of the Services or any of its obligations under this Agreement to any third party without the prior written consent of ICSDC.
18.2 ICSDC may after notice to the Customer, engage a subcontractor to provide Services to Customer.
19.1 The fees that ICSDC shall charge for its’ 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 the fees in accordance with ICSDC’s invoices, and any fees charged for Supplemental Services provided on or before the Due Date.
19.3 ICSDC shall send invoices to the Customer through email/fax/post/courier to the designated invoicing address of the Customer as provided in Clause 21.
19.4 Delay in Payments
(a) In the event Customer receives an invoice and is of an opinion that there is a dispute in the same, the Customer is required to notify ICSDC in writing within seven (7) calendar days of its receipt and make payments for the undisputed amount on or before the Due Date.
(b) In case the invoices are undisputed, and there are any delays in its payment, the Customer is liable to pay compensatory interest at a rate equivalent to eighteen percent (18%) per annum on the unpaid amount from the date that the amount becomes due for payment till the date of receipt of payment by ICSDC in its account. Further, ICSDC (if applicable) shall be entitled to an extension of time for its performance under this Agreement equal to the period of Customer’s non-fulfillment, whether or not ICSDC elects to suspend performance.
(c) In case the invoices are undisputed, and are not paid by the Due Date, ICSDC reserves its right to rightfully approach National Company Law Tribunal (“NCLT”)/ Debt Recovery Tribunal (“DRT”) for recovery, or any other court of law as it deems fit or follow the Dispute Resolution procedure prescribed herein.
19.5 In the event the Customer needs to provide any information/documents to enable ICSDC to avail any benefits (including any tax benefits, reduced or concessional tax rates, incentives etc.), the Customer shall provide the same on a timely manner to enable ICSDC to obtain/avail such benefits. Upon any failure of the Customer in fulfilling its obligations under this clause (including failure to provide the requisite information/documents on a timely basis), ICSDC shall, without prejudice to its rights and remedies, be entitled to claim and recover the amount of the benefit(s) lost on account of such failure/delay from the Customer.
19.6 If Customer is an unlisted company, ICSDC shall, at its option, reserve the right to conduct credit check on the Customer. In cases where ICSDC requires to conduct such credit checks, the Customer shall provide credit check reports from Dum & Bradstreet (“D&B”), or Credit Information Bureau of India Limited (“CIBIL”) or other similar agencies. In case the Customer credit report is not as per the expectations of ICSDC, ICSDC shall notify the Customer; thereafter the payment terms shall be amended to the effect that the Customer will be required to pay monthly in advance to avail the agreed Services. In the event the Customer does not agree to pay monthly in advance, ICSDC shall reserve the right to immediately terminate the Services.
19.7 Taxes:
iii. The Customer shall be required to provide the GST details as required under the Goods and Services Tax Act, 2016, along with the Purchase Order. ICSDC shall raise tax invoices based on the GST details made available in the Purchase Order. The Customer alone shall bear the consequences, including any loss of input credit, penalties or any other charges, of failure to provide requisite GST details or of any inaccuracy therein.
20.1 All communications by Customer with respect to this Agreement should be sent to the sales department of ICSDC via electronic mail/fax/registered post/courier at the address below or email address as shown on the website:
ICSDC Consultants Pvt. Ltd.
D-331, Sector 108, Noida, Uttar Pradesh-201304
Attn: Mr. Suresh C Chhabra (Director)
Email: info@clawdevelopment.in
20.2 All communications by ICSDC with respect to this Agreement should be sent to the Customer via electronic-mail/registered-post/courier at the address or email address and details as entered by the subscriber during the sign-up process, as per records with ICSDC:
Full Legal Name of Customer:
Full Address of Customer:
Customer Authorized Contact Person:
Email ID of the Authorized Contact Person:
20.3 A Party to this Agreement shall notify the other Party of any changes to the address or any of the other details as specified in this Clause 20.2. The Customer acknowledges and understands that the Services provided by ICSDC and availed by the Customer is of such a nature that requires urgent and immediate communication between the Parties. In the event the Customer fails to notify any change of its address or any of its other details as specified in this Clause 20, the same shall be considered a material breach of this Agreement and shall entitle ICSDC to terminate the Agreement without any liability whatsoever.
21.1 A Party shall not be liable to the other Party if, and to the extent, that the performance of any of its obligations under this Agreement is persistently prevented, restricted, delayed or interfered with due to circumstances beyond the reasonable control of that Party, including, but not limited to, circumstances such as change in legislation, fire, flood, earthquake, explosion, epidemic, pandemic accident, act of God, war, riot, terrorist activities, strike, lockout and/or act of government (Force Majeure). The Party claiming an event of Force Majeure as aforesaid shall promptly notify within reasonable time the other Party in writing and provide full particulars of the event of Force Majeure/vis major and the date of first occurrence thereof, as soon as possible after the event and also keep the other Party informed of any further developments. The Party so affected shall use its commercially reasonable efforts to remove the cause of non-performance, and shall, unless otherwise agreed to by the other Party in writing, resume performance hereunder with utmost dispatch when such cause of non-performance is removed.
21.2 On the occurrence of Force Majeure/Vis Major the Affected Party shall be excused from performance of its directly affected obligations (save and except payment obligations) to the extent performance of such obligations is affected by Force Majeure/Vis Major.
21.3 On the occurrence of Force Majeure/Vis Major either Party may terminate this Agreement by written notice to the other in the event the Force Majeure/Vis Major situation continues for more than thirty (30) days, without any liabilities whatsoever other than those that may have arisen and or accrued before the occurrence of the Force Majeure/Vis Major event.
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 in relation to this Agreement.
22.2 Neither Party shall remove or misuse or modify any copyright, trademark or any other proprietary right of the other Party which is known by virtue of this Agreement, in any circumstances.
23.1 This Agreement shall be governed by the laws of the Republic of India.
23.2 In case of any disagreement and or dispute whatsoever between the Customer and ICSDC under this Agreement, the dispute shall be resolved in the manner as outlined here under.
23.3 The Customer and ICSDC shall make every effort to resolve amicably by direct informal negotiations any disagreement or dispute between them on any matter connected with this Agreement or in regard to the interpretation thereof. If, after thirty (30) days from the commencement of informal negotiations, the Customer and ICSDC have not been able to resolve the dispute amicably, such differences and disputes shall be referred, at the option of either Party, to arbitration by a sole arbitrator to be mutually agreed upon and in the event of no consensus between the parties, then the High Court of Delhi shall have sole jurisdiction to appoint an Arbitrator under the provisions of the Arbitration and Conciliation Act (1996) and its amendments/ordinances thereafter (“Act”). Such arbitration shall be conducted in accordance with the Arbitration and Conciliation Act, 1996 and its amendments/ordinances thereafter. Upon every or any such reference the costs of and incidental to the reference and award shall be borne equally by the parties. The arbitration shall take place in New Delhi, India unless otherwise mutually agreed by the Parties and shall be conducted in the English language.
24.1 Solicitation
Customer agrees that (a) it will not compete with ICSDC in any manner, and (b) it will not solicit any of the employees of ICSDC, including those who have directly or indirectly been involved in providing Services to Customer, for employment with the Customer and/or any of its associates, affiliates, group companies or third parties, during the validity of this Agreement and up to twenty four (24) months from the expiry or date of termination of this Agreement.
24.2 Intellectual Property in Services
ICSDC is the sole owner of all patents, copyrights, trademarks, industrial designs, trade names and trade secrets and all other intellectual property rights in the Services and the Customer agrees that nothing contained herein shall be deemed to result in any transfer of such intellectual property to the Customer.
24.3 Modification of Services and Amendment
(a) Customer agrees that any change in the Services other than as accepted by both the Parties under this Agreement, shall be affected only after a written confirmation is received from ICSDC on the request of Customer.
(b) Any modifications accepted by Any modifications accepted by ICSDC may attract different fees and amendment of certain terms of this Agreement. On acceptance of such terms and fees in writing the modifications requested by the Customer shall be brought into force.
(c) This Agreement may be amended only by the written agreement of both Parties.
24.4 There shall be no third-party beneficiaries to this Agreement.
24.5 Relationship between Parties, Subcontractors
(a) The relationship of ICSDC and Customer created by this Agreement is that of independent contractors and no partnership is created. Nothing contained in this Agreement shall be construed to give either Party the power to direct and control the day-to-day activities of the other.
(b) Neither Party shall be considered an agent of the other Party and neither Party may represent to any person that it has the power to bind the other on any agreement. The Agreement is non-exclusive and allows both Parties to conduct its business in a manner that is not against the terms and spirit of this Agreement.
24.6 Micro, Small and Medium Enterprises Development Act, 2006
The Customer shall notify ICSDC, in writing within thirty (30) days, if the Customer is qualified or gets qualified during the term of this Agreement as a micro, small or medium enterprise as defined under the Micro, Small and Medium Enterprises Development Act, 2006 (“MSME Act”), and agrees to waive its rights under the MSME Act. In the event it fails to comply with the aforementioned requirement, ICSDC shall assume that the Customer does not fall under the ambit of the MSME Act to the extent provided above. The Customer shall defend, indemnify and hold ICSDC harmless against any claims, costs and legal liability incurred by Customer as a result of ICSDC’s failure to notify Customer or comply with the requirements of this provision.
24.7 Stamp Duty
The Parties agree that the stamp duty as applicable and payable on the Agreement shall be borne by ICSDC.
24.8 Severability
The Parties acknowledge that if any provision of this Agreement is unenforceable in any respect, such unenforceability shall not affect any other provisions of this Agreement and this Agreement shall be construed as if such unenforceable provision had never been contained herein.
24.9 Non-Disparagement
The Customer hereby understands, acknowledges and agrees that it will not and will ensure that its representatives, employees, agents, contractors, associates, group companies etc. do not in any form or manner carry out disparagement, negative characterization, defamation and/or any adverse public criticism of the Services, or question the business, integrity, veracity or personal or professional reputation of ICSDC.
24.10 Agreement
All annexures to this Agreement are hereby incorporated in this Agreement. The Agreement is the complete and exclusive agreement between the Parties regarding its subject matter, supersedes, and replaces any prior agreement, understanding or communication, written or oral. In the event of any conflict or inconsistency between the provisions of the Master Services Agreement, SLA, AUP, Purchase Order, or any other agreement entered between the Parties, the provisions of the Master Services Agreement shall prevail.
24.11 Cumulative-Remedy
No right or remedy made available to Customer under or pursuant to this Agreement is intended to be exclusive of any other right or remedy provided to Customer hereunder or available under Applicable Law, or in equity or under contract or otherwise.
24.11 Waiver
No failure or delay on the part of either Party in the exercise of any right, power, privilege or remedy provided under this Agreement shall operate as a waiver of such right, power, privilege or remedy or as a waiver of any preceding or succeeding breach by the other Party to this Agreement nor shall any single or partial exercise of any right, power, privilege or remedy preclude any other or further exercise of such or any other right, power, privilege or remedy provided in this Agreement (all of which are several and cumulative and are not exclusive of each other) or of any other rights or remedies otherwise available to a Party at law or in equity. Waiver, if any, has to be in writing by authorized personnel of the respective Party.
24.12 Survivability
In addition to any provisions of this Agreement that by their terms or nature are intended to survive termination of this Agreement, shall survive the termination of this Agreement, and the parties shall remain bound thereby. More specifically, it is mutually agreed between the parties that all provisions under this Agreement regarding indemnification, liability and limits thereon, and confidentiality and or protections of proprietary rights and trade secrets shall survive the termination of this Agreement.
