OneMind Services Hosting Master Services Agreement

Defined Terms

Capitalized terms used in this Agreement shall have the following meanings, or the meanings assigned to them in other sections:

• "Agreement" refers to the Service Order Form(s), this Master Services Agreement, the Service Level Agreement (SLA), any OneMind Services Addendum to this Master Services Agreement, and the Acceptable Use Policy (AUP), collectively. In the event of any conflict between these documents, the following order of precedence will apply: Service Order Form, this Agreement, Service Level Agreement, OneMind Services Addendum, AUP.

• "AUP" means OneMind Services Acceptable Use Policy, posted on OneMind Services’ website, as amended from time to time in accordance with Section 6 (AUP) of this Master Services Agreement.

• "Business Day" means Monday through Friday, from 8:00 a.m. to 5:00 p.m. Eastern Time, excluding any U.S. Federal Holiday.

• "Effective Date" means the day that the Customer accepts the Agreement, either by signing OneMind Services’ Service Order Form or this Master Services Agreement, or by using the Service.

• "Service Commencement Date" means the date OneMind Services generates an email to the Customer providing access codes and passwords for use in connection with the Hosting Service.

• "Service Level Agreement (SLA)" means the Service Level Agreement incorporated by reference in the Service Order Form, as it may be amended from time to time by written agreement between the parties.

• "Service Order Form" means the OneMind Services Dedicated Server Service Order Form accepted by Customer, as it may be amended from time to time in accordance with the Agreement.

• "Service or Services" refers to the Hosting Services and any Supplemental Services (as defined in Section 3) provided by OneMind Services to Customer under the Agreement.

Term

The initial service term of this Agreement will begin on the Service Commencement Date and continue for the period stated in the Service Order Form (the “Initial Term”), automatically renewing for successive terms equal to the initial term unless either party cancels in writing at least 30 days before the expiration of the current term (the “Term”). If the Service Order Form is executed after the Effective Date, the Initial Term will begin on the Service Commencement Date stated in that Service Order Form and continue for the period specified in that form.

Services

Upon the Customer’s satisfaction of OneMind Services’ credit approval requirements, OneMind Services agrees to provide Hosting Services as outlined in the Agreement.Additionally, OneMind Services may, from time to time, perform additional services on an hourly fee basis (“Supplemental Services”), such as customizing Hosting Services at the Customer’s request, services described in the AUP, and other professional technical services. Supplemental Services will only be performed with Customer’s prior written approval and will be invoiced at OneMind Services' published rates or mutually agreed-upon rates. However, OneMind Services may perform Supplemental Services for AUP-related violations without prior Customer consent, at the rates specified in the AUP.

Payments

1. Agreement to Provide Services and Pay Fees; Service Level Agreement: In consideration for the Services provided, Customer agrees to pay the fees outlined in the Service Order Form, which OneMind Services may adjust annually according to the Consumer Price Index and/or applicable electricity costs, plus a 2% increase. Customers may also be required to pay increased software license fees, as imposed by the software owner.
2. Payment of Fees; Due Date; Late Charge; Default Interest: Customer agrees to pay the fees in advance each month by the due date, as stated in the Service Order Form. Late payments will incur an administrative charge of 5% of the overdue fees, plus default interest at the lesser of 1.5% per month or the maximum rate allowed by law. OneMind Services may suspend all services for overdue payments, subject to a INR 6461.11 reinstatement fee. Disputed invoices must be raised within 60 days; otherwise, they are deemed accurate.
3. Early Termination: If the Agreement is terminated early, either due to Customer's breach or OneMind Services' breach, the Customer must pay all outstanding fees for the remaining portion of the term.

Customer Obligations

Customer agrees to:

1. Security Precautions: Use reasonable security precautions and require its customers and end-users to do the same.
2. Security and Backup: Properly configure and secure its content and backup services to ensure availability and security.
3. Law and AUP Compliance: Comply with applicable laws and OneMind Services' AUP and ensure that end-users also comply.
4. Cooperate with AUP Investigation: Assist with any reasonable investigation into suspected violations of the AUP.

AUP

Customer agrees that OneMind Services may amend the AUP as necessary, with notice to Customer. If the amendment materially adversely affects the Customer, they may terminate the Agreement as per Section 13 (Termination).

Suspension of Service

OneMind Services may suspend Services without prior notice if Customer’s use violates the AUP or for security reasons, including denial-of-service attacks, law enforcement requests, or overdue payments. Service suspension may lead to unavailability of Customer’s information.

Warranties

1. Reciprocal Warranties: Each party represents and warrants that it has the power and authority to enter into this Agreement and perform its obligations.
2. Customer Warranties: Customer ensures that the information provided to OneMind Services is accurate and that it does not use the Services in violation of U.S. Export Regulations.

Unauthorized Use of Service

The customer is responsible for the security of the services provided and for any unauthorized use of the Services by third parties unless caused by OneMind Services’ failure to fulfill its obligations.

Indemnification

1. Customer’s Indemnification: Customer will indemnify OneMind Services against any claims arising from violations of the AUP or the Agreement, including third-party complaints.
2. OneMind Services’ Indemnification: OneMind Services will indemnify Customer for claims arising from the infringement of third-party intellectual property rights.

Disclaimer of Warranties

OneMind Services does not warrant uninterrupted, error-free, or completely secure services. Customer acknowledges the inherent risks involved in internet connectivity.

Limitation of Damages

The parties agree that the allocations of risk made in this Section are reasonable and that they would not enter into the Agreement without these limitations on liability.

THE CREDITS DESCRIBED IN THE SERVICE LEVEL AGREEMENT AND SERVICE ORDER FORM ARE CUSTOMER’S SOLE REMEDIES FOR ONEMIND SERVICES' FAILURE TO MEET THE GUARANTEES AND WARRANTIES STATED IN THOSE DOCUMENTS, PROVIDED THAT THIS PROVISION DOES NOT LIMIT CUSTOMER’S RIGHT TO TERMINATE THIS AGREEMENT AS PROVIDED IN SECTION 13 (TERMINATION) BELOW IF SUCH FAILURE(S) CONSTITUTE A MATERIAL BREACH OF THIS AGREEMENT.

EXCEPT AS DESCRIBED IN THE SERVICE LEVEL AGREEMENT, ONEMIND SERVICES SHALL NOT BE LIABLE TO THE CUSTOMER FOR HARM CAUSED BY OR RELATED TO CUSTOMER’S USE OF THE SERVICES OR INABILITY TO USE THE SERVICES UNLESS THE HARM WAS CAUSED BY ONEMIND SERVICES’ GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE LOSS OR DAMAGE OF ANY KIND, OR FOR DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING IN CONNECTION WITH THE AGREEMENT, EVEN IF THE PARTY HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILITY OF SUCH DAMAGES.

NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF ONEMIND SERVICES AND ANY OF ITS EMPLOYEES, AGENTS, OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED THE AMOUNT PAID BY CUSTOMER FOR THE HOSTING SERVICE FOR THE THREE MONTHS PRIOR TO THE OCCURRENCE OF THE EVENT(S) GIVING RISE TO THE CLAIM.

NO CLAIM MAY BE ASSERTED BY EITHER PARTY AGAINST THE OTHER PARTY WITH RESPECT TO ANY EVENT, ACT, OR OMISSION THAT OCCURRED MORE THAN TWO (2) YEARS PRIOR TO SUCH CLAIM BEING ASSERTED.

Termination

1. Customer: The Agreement may be terminated by Customer prior to the expiration of the Initial Term, any Renewal Term, or Extended Term without liability (except for amounts due for Services through the effective date of termination) as follows: (i) OneMind Services fails in a material way to provide the Hosting Service in accordance with the terms of the Agreement and does not cure the failure within ten (10) days of Customer’s written notice describing the failure in reasonable detail, (ii) OneMind Services materially violates any other provision of the Agreement and fails to cure the violation within thirty (30) days of Customer’s written notice describing the violation in reasonable detail, or (iii) as provided in Section 6 (AUP) upon thirty (30) days advance written notice in the event of an amendment to the AUP that materially and adversely affects Customer and that is not waived by OneMind Services.
2. OneMind Services: The Agreement may be terminated by OneMind Services prior to the expiration of the Initial Term, any Renewal Term, or Extended Term, without liability as follows: (i) upon five (5) Business Days' notice if Customer is overdue on the payment of any amount due under the Agreement; (ii) Customer materially violates any other provision of the Agreement, including the AUP, and fails to cure the violation within thirty (30) days of a written notice from OneMind Services describing the violation in reasonable detail; (iii) upon one (1) Business Day notice if Customer’s Service is used in violation of a material term of the AUP more than once; or (iv) upon reasonable notice if OneMind Services is threatened with a legal claim for copyright or patent infringement related to the provision of the Service and is unable to modify the Service in a way that avoids an ongoing risk of liability.

Confidentiality

1. Confidential Information: Confidential Information is: (i) with respect to OneMind Services, OneMind Services’ unpublished prices for services, audit and security reports, server configuration designs and other proprietary technology, (ii) with respect to Customer, content transmitted to or from, or stored by Customer on, OneMind Services’ servers, and (iii) with respect to both parties, other information that is conspicuously marked as “confidential” or if disclosed in non-tangible form, is verbally designated as “confidential” at the time of disclosure and confirmed as confidential in a written notice given within one (1) day of disclosure; but excluding any information which is independently developed by a non-disclosing party as shown by such party’s written business records, is or becomes generally available to the non-disclosing party or the public other than through violation of the Agreement, or is required to be disclosed by law or regulation. Each party agrees not to disclose the other’s confidential information to any third party except to its service providers, agents and representatives who need to know the information to represent or advise it with respect to the subject matter of the Agreement; and provided that such service providers, agents and representatives are bound by confidentiality restrictions at least as stringent as those stated in the Agreement.
2. OneMind Services’ Use of Customer’s Name and Logo: Customer agrees that OneMind Services may publicly disclose that OneMind Services is providing services to Customer and may include Customer’s name and logo in promotional materials, including press releases, on OneMind Services’ website, and marketing collateral.
3. Requests for Customer Information: Notwithstanding anything to the contrary above, Customer agrees that OneMind Services may, without notice to Customer, (i) report to the appropriate authorities any conduct by Customer or any of Customer’s customers or end-users that OneMind Services believes violates applicable law, and (ii) provide any information, including Confidential Information, it has about Customer or any of its customers or end-users in response to a formal or informal request from a law enforcement or government agency. OneMind Services may provide any information, including Confidential Information, it has about the Customer or its customers or end-users in response to a formal request in a civil action that in its face meets the requirements for such a request.

Software

Customer agrees not to remove, modify or obscure any copyright, trademark, or other proprietary rights notices that appear on any software provided by OneMind Services. Customer may not reverse engineer, decompile, or disassemble any OneMind Services-provided software, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation, or is permitted by the terms of any “open source” license that governs the use of the software.

Third Party Products

As a convenience to Customer, OneMind Services may from time to time arrange for Customer’s purchase or license of third-party software, services, and other products not included as part of the Service, and/or may provide support to Customer in relation to those products. ONEMIND SERVICES MAKES NO REPRESENTATIONS OR WARRANTY WHATSOEVER REGARDING SUCH THIRD-PARTY PRODUCTS AND RELATED SUPPORT SERVICES AND THEY ARE PROVIDED “AS IS.” Customer’s use of third-party software, services, and other products is governed by the terms of any license or other agreement between Customer and the third party.

Notices

Notices to OneMind Services under the Agreement shall be given in writing via first class mail or established and well-known express courier to Legal Counsel, OneMind Services, at OneMind Services’ principal office address posted on www.onemindservices.in

United states - 11501 Dublin Bvld, Suite#200 Dublin CA 94568

India - 08th Floor, Magnum Tower, Sector 58, Gurugram, 122001 Haryana, India

Notices to the Customer shall be given via electronic mail to the individual designated as the Contact on the Service Order Form or by means reasonable under the circumstances, including an e-mail to a known contact. Notices are deemed received on the day delivered, or if that day is not a Business Day, on the first Business Day following the day delivered.

Miscellaneous

Miscellaneous provisions that cover employment solicitation, ownership, legal terms, waiver, survival, and more.

1. Solicitation of OneMind Services Employees: Customer agrees that it shall not solicit any OneMind Services employee with whom Customer has had direct contact in connection with this Agreement for employment with Customer or any other person during the term of this Agreement and for twelve (12) months following termination of this Agreement. Notwithstanding the foregoing, Customer shall not be precluded from (i) hiring an employee of OneMind Services who independently approaches Customer, or (ii) conducting general recruiting activities, such as participation in job fairs or publishing advertisements in publications or on websites for general circulation. In the event of a violation of this provision, in addition to any other right OneMind Services may have at law or in equity, Customer shall make a one-time payment to OneMind Services in the amount of fifty percent (50%) of the employee’s base salary for one year.
2. Ownership: 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 that OneMind Services shall own any intellectual property that it may develop in the course of performing the Services. Customer does not acquire any ownership interest or rights to possess OneMind Services’ server(s) or other hardware and has no right of physical access to the hardware. Upon termination of the Agreement, Customer agrees to promptly release any Internet protocol numbers, addresses, or address blocks assigned to Customer in connection with the Service (but not any URL or top-level domain or domain name) and agrees that OneMind Services may take steps to change or remove any such IP addresses.
3. Governing Law, Jurisdiction, Venue: The Agreement shall be governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
4. Modifications: Except for the following, the Agreement may be amended only by a formal written agreement signed by both parties: (i) amendments of the AUP as described in Section 6, above, (ii) a Renewal Term may be agreed by means of OneMind Services’ renewal process, and (iii) changes to the “Server Specifications,” “Software and Services,” or fees section of an existing Service Order Form may be made by an exchange of correspondence (including electronic mail) that includes both parties’ express consent to the change. The terms on either party’s purchase order or other business forms are not binding on the other party unless they are expressly incorporated into a formal written agreement signed by both parties.
5. Non-Waiver: A party’s failure or delay in enforcing any provision of the Agreement will not be deemed a waiver of that party’s rights with respect to that provision or any other provision of the Agreement. A party’s waiver of any of its rights under the Agreement is not a waiver of any of its other rights with respect to a prior, contemporaneous, or future occurrence, whether similar in nature or not.
6. Captions: The captions in the Agreement are not part of the Agreement but are for the convenience of the parties.
7. Counterparts: Any documents signed in connection with the Agreement may be signed in multiple counterparts, which taken together will constitute one original.
8. Survival: The following provisions will survive expiration or termination of the Agreement: fees, indemnity obligations, confidentiality obligations, provisions limiting liability and disclaiming warranties, provisions regarding ownership of intellectual property, these miscellaneous provisions, and other provisions that by their nature are intended to survive termination of the Agreement.
9. Force Majeure: Neither party shall be in default of any obligation under the Agreement if the failure to perform the obligation is due to any event beyond that party’s control, including, without limitation, significant failure of a portion of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorist activity, or other events of a magnitude or type for which precautions are not generally taken in the industry.
10. No Third-Party Beneficiaries: There are no third-party beneficiaries to the Agreement. Neither insurers nor the customers of resellers are third-party beneficiaries to the Agreement.
11. Severability: In the event any term of this Agreement is held unenforceable by a court having jurisdiction, the remaining portion of the Agreement will remain in full force and effect, provided that the Agreement without the unenforceable provision(s) is consistent with the material economic incentives of the parties leading to the Agreement.
12. Relationship Between the Parties: The parties are independent contractors and not partners or joint venturers. Neither party is the agent of the other and neither party may represent to any person that it has the power to bind the other to any agreement. The Agreement is non-exclusive. OneMind Services may provide a service to any person, including a competitor of the Customer.
13. Assignment: Customer may not transfer the Agreement without OneMind Services’ prior written consent. OneMind Services’ approval for assignment is contingent on the assignee meeting OneMind Services’ credit approval criteria. OneMind Services may assign the Agreement in whole or in part.
14. Agreement: The Service Order Form(s), Service Level Agreement, OneMind Services’ AUP, and any OneMind Services Addendum to this Master Services Agreement accepted by Customer are hereby incorporated in this Master Services Agreement by reference and together collectively constitute the Agreement. The Agreement is the complete and exclusive agreement between the parties regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.
15. Not Legal Advice: OneMind Services provides general information on a wide range of topics that includes compliance, best practices, and cybersecurity on its website and blog with the best effort to help educate users. The information is intended for general information only and is not legal advice nor the best fit for all scenarios. OneMind Services’ postings will be updated from time to time, however, there will be cases where the information may be out of date. Please consult with your CPA, attorney, auditors, and cybersecurity experts for legal and best practice advice.