A. Nine Minds is a Texas-based Managed Service Provider (MSP), Managed Security Service Provider (MSSP), and provider of IT professional consulting and technical services, offering managed IT infrastructure, cybersecurity monitoring, threat detection, incident response, compliance services, IT strategy consulting, cloud architecture design, software development, systems integration, and on-demand technical staffing; and

B. The Client desires to engage Nine Minds to deliver certain specified services (collectively, “Services”) under Statements of Work (“SOWs”) and Service Order Agreements (“SOAs”) issued pursuant to the MSA and subject to these Terms.

The Parties agree as follows:

1.1 Scope. Nine Minds shall perform each of the Services on behalf of the Client, as further described in each SOW or SOA. All Services will be governed by either a service level agreement or project-specific milestones and acceptance criteria, as specified in the applicable SOW or SOA. The Parties agree that Nine Minds is an independent contractor of the Client and agree to work together in accordance with such arrangement.

1.2 Compliance. Nine Minds will align with NIST CSF. Any additional Client-specific compliance (e.g., HIPAA, PCI-DSS, CMMC) must be specifically described in the applicable SOW or SOA.

2.1 Initial Term. The Agreement commences on the Effective Date and continues for three (3) years (“Initial Term”), unless terminated as set forth below.

2.2 Renewal. The Agreement automatically renews for additional one (1) year periods following the expiration of the Initial Term and any subsequent renewal term, unless either Party gives ninety (90) days’ written notice of termination prior to renewal.

2.3 Termination for Cause. Either Party may terminate the Agreement by written notice to the other Party if the other Party materially breaches the Agreement and does not cure the breach within thirty (30) days after written notice. The Client may terminate the Agreement by giving written notice to Nine Minds if Nine Minds fails to provide service level credits that exceed 25% of the monthly fees for managed services in any three (3) consecutive months. The Client’s right to terminate under this provision will expire forty-five (45) days after the date on which the right first arises.

2.4 Termination for Convenience. After the Initial Term, either Party may terminate the Agreement by providing no less than sixty (60) days prior written notice.

2.5 Transition Assistance. Upon termination, Nine Minds shall provide up to sixty (60) days of transition support at then-current time-and-materials rates (mandatory for Managed Services; optional for Consulting/Technical Services).

2.6 Termination Rights. Following any termination, the Client shall pay Nine Minds for all Services performed up to the date of termination. Such payment to be made no later than ten (10) days after the date of termination.

3.1 Fees. Fees shall be paid as specified in each SOW or SOA.

3.2 Rates. Rates for Nine Minds services are set forth in the SOW or SOA that describes the services being provided.

3.3 Invoicing. Invoices shall be sent to the Client as set forth in each SOW or SOA. All invoices are due thirty (30) days from the invoice date.

3.4 Late Payment. Any payment that is not paid on time will bear interest from the due date at the rate of 1.5% per month or the maximum allowed under Texas Finance Code § 302.002, whichever is less.

3.5 Expenses. All pre-approved expenses (travel, tools, third-party licenses) incurred by Nine Minds in providing the Services are reimbursable by the Client at cost plus 10%. Such expenses shall be included in the invoices sent by Nine Minds.

3.6 Taxes. The Client shall pay all sales, use, and excise taxes related to the Agreement (excluding taxes on Nine Minds’ income).

4.1 Definition. “Confidential Information” means any non-public information disclosed by one Party to the other, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to the Client data, security logs, project plans, code, designs, pricing, and the Agreement.

4.2 Obligations. With respect to the Confidential Information of the other Party, each Party shall:

• Use only for performing the Services
• Disclose only to employees/contractors with need-to-know and under similar confidentiality obligations
• Protect with reasonable care

4.3 Duration. The obligations under this Section 4 of each Party will survive for five (5) years post-termination (perpetual for trade secrets and source code) of the Agreement.

4.4 Required Disclosure. Permitted if compelled by law, with prompt notice to the other Party.

4.5 Exclusions. The following are excluded from being considered Confidential Information:

• Publicly known and made generally available through no breach by either Party
• Previously known on a non-confidential basis at the time of disclosure to the applicable Party
• Rightfully received on a non-confidential basis from a third party who is authorized to make such disclosure
• Developed without access to the Confidential Information, in each case as evidenced by documents

5.1. Definitions.

• “Client IP”: All copyrights, patents, data, content, trademarks, business logic, specifications, and materials owned by the Client.
• “Custom Software”: Software, code, scripts, configurations, [. . .] developed specifically for the Client under a SOW, including modifications to Nine Minds IP if inseparable from Client-specific functionality.
• “Deliverables”: All reports, designs, architectures, Custom Software, and other work product created by Nine Minds for the Client under a SOW.
• “Nine Minds IP”: All copyrights, trademarks, patents, software, tools, scripts, libraries, frameworks, methodologies, templates, documentation, and know-how owned or licensed by Nine Minds prior to the Effective Date or developed independently of this Agreement.

5.2 Nine Minds IP. Nine Minds retains all right, title, and interest in Nine Minds IP. The Client is granted a non-exclusive, non-transferable, royalty-free license to use Nine Minds IP only as embedded in or necessary to operate the Deliverables during the Term and any transition period.

5.3 Client IP. The Client retains all right, title, and interest in the Client IP. Nine Minds is granted a limited, revocable license to use the Client IP solely to perform the Services.

5.4 Custom Software Ownership & Transfer. (a) Ownership: All Custom Software shall be deemed a “work made for hire” under Texas and U.S. copyright law (17 U.S.C. § 101). To the extent that any Custom Software does not qualify as a work made for hire, Nine Minds hereby irrevocably assigns to the Client all worldwide right, title, and interest (including all intellectual property rights) in such Custom Software, effective upon creation. (b) Moral Rights: Nine Minds waives any moral rights in the Custom Software. (c) No Retention: Nine Minds shall not retain, use, or license Custom Software to any third party without the Client’s prior written consent.

5.5 Source Code Delivery. Upon final acceptance of the applicable SOW for the creation of Custom Software (or earlier if specified), Nine Minds shall deliver to the Client:

• Complete, commented source code (including build scripts, dependencies, configuration files)
• Documentation sufficient for a reasonably skilled developer to maintain, modify, and compile
• Delivery Medium: Secure file transfer (SFTP) or Git repository with full commit history

SOW Option A (Default): Immediate delivery upon Final Acceptance. SOW Option B (Negotiated): Source code placed in escrow (§5.7).

5.6 License to Custom Software (Fallback). If full ownership transfer is not permitted (e.g., non-assignable third-party components), Nine Minds grants the Client a perpetual, irrevocable, worldwide, royalty-free, fully paid-up license in the Custom Software to use, modify, enhance, and create derivative works thereof.

5.7 Source Code Escrow (Optional). If specified in a SOW, Nine Minds shall deposit source code of Custom Software with a mutually agreed escrow agent (e.g., Iron Mountain). The source code will be released from escrow upon the first to occur of the following:

• Nine Minds ceases business or files bankruptcy
• Nine Minds materially breaches delivery obligations under the applicable SOW
• Termination of the SOW by the Client for cause

Nine Minds will pay the costs to set up the escrow, and the Client will pay all annual fees associated with the escrow.

5.8 Open Source Software (OSS). (a) Nine Minds shall disclose all OSS components in the SOW Bill of Materials (BOM), including license terms and copyleft obligations. (b) Nine Minds warrants OSS use complies with all licenses and does not cause the Client’s proprietary code to become subject to copyleft unless explicitly approved in writing. (c) The Client may require replacement of non-compliant OSS at Nine Minds’ expense.

5.9 Third-Party Components. Custom Software may include licensed third-party tools. The Client is responsible for procuring and paying for such licenses unless the SOW states otherwise.

5.10 Verification & Audit. The Client may, upon ten (10) days’ written notice, audit Nine Minds’ compliance with this Section 6 (limited to once per year, at the Client’s expense unless material noncompliance is found).

6.1. Nine Minds Warranties. Nine Minds represents and warrants to the Client as follows:

• Services will be performed in a professional, workmanlike manner consistent with industry standards
• There will be no disabling code contained in any deliverables
• All of its consulting recommendations are based on reasonable skill and care
• All developments will be original to Nine Minds
• It has authority to enter into the Agreement

6.2. Client Warranties. The Client represents and warrants to Nine Minds as follows:

• It has authority to enter into the Agreement
• No Client data infringes on any third-party rights

6.3. DISCLAIMER. EXCEPT AS STATED IN THE AGREEMENT, ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OUTCOMES. THE CUSTOMER ACCEPTS ALL RISKS ASSOCIATED WITH THE SERVICES AND ACKNOWLEDGES THE FOREGOING DISCLAIMER AND ASSUMPTION OF RISK.

7.1. Indemnity Obligation. Each Party (“Indemnifying Party”) will indemnify, defend, and hold the other Party (“Indemnified Party”), its affiliates, and subsidiaries and their respective officers, managers, members, employees, and agents harmless from and against any allegations asserted or damages, liabilities, losses, costs or expenses (including reasonable attorneys’ fees) sought in any third-party claim, action, lawsuit or proceeding connected with or arising out of any of the following (each, a “Claim”): (i) any error, omission or fault of the Indemnifying Party under the Agreement, or (ii) the Indemnifying Party’s negligence or willful misconduct under the Agreement.

7.2. Procedure. In each case the Indemnified Party shall (i) promptly notify the Indemnifying Party, in writing, of any Claim of which it becomes aware, and (ii) permits the Indemnifying Party to control, in a manner not adverse to the Indemnified Party, the defense, settlement, adjustment or compromise of any such claim using counsel reasonably acceptable to the Indemnified Party. The Indemnified Party may employ counsel, at its own expense (provided that if such counsel is necessary because of a conflict of interest of either the Indemnifying Party or its counsel or because the Indemnifying Party does not assume control, the Indemnifying Party will bear such expense), to assist it with respect to any such claim. The Indemnifying Party shall not enter into any settlement that affects the Indemnified Party’s rights or interests without the Indemnified Party’s prior written approval.

8.1. Cap. In the event that either Party incurs any damages in connection with the Agreement, liability for any Party shall in no event exceed the amount paid to Nine Minds under the Agreement during the immediately preceding twelve (12) month period.

8.2. Exclusions. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE PARTIES SHALL HAVE NO OTHER LIABILITY TO EACH OTHER FOR ANY DAMAGES, WHETHER GENERAL, SPECIAL, OR CONSEQUENTIAL, INCLUDING ANY LOST PROFITS OR LOST SAVINGS, WHETHER OR NOT FORESEEABLE. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE OTHER PARTY IS ENTERING INTO THE AGREEMENT IN RELIANCE ON THE DISCLAIMERS AND LIMITATIONS SET FORTH HEREIN.

8.3. Carve-Outs. The foregoing cap does not apply to:

• Breach of confidentiality
• Gross negligence or willful misconduct
• Indemnification obligations
• Data breach notification failures

Nine Minds maintains, at its expense, industry-leading insurance coverage with A-rated or better carriers on admitted paper, including:

• Broad-form Technology E&O with full prior acts
• Cyber Liability with first- and third-party coverage, including business interruption and social engineering
• Umbrella liability with defense outside limits

Full policy declarations and certificates of insurance are available upon written request.

10.1. Governing Law. The Agreement, and all related matters, whether in contract or in tort, are to be governed by the laws of the State of Texas, without regard to choice of law or conflict of law principles that direct the application of the laws of a different state.

10.2. Venue. Any action or proceeding in connection with the Agreement shall be exclusively brought in any state or federal court in Williamson County, Texas. The parties irrevocably (a) submit to the exclusive jurisdiction of such courts, and (b) waive any objection to venue and jurisdiction of any action or proceeding or any argument that such court is in an inconvenient forum or lacks jurisdiction.

10.3. Injunctive Relief. Injunctive relief may be sought by either party for a breach of confidentiality, intellectual property, or non-compete.

10.4. Attorneys’ Fees. The prevailing party in any legal proceeding between the Parties shall be entitled to collect its reasonable attorneys’ fees and costs.

11.1. Entire Agreement. The Agreement constitutes the entire agreement between the Parties with respect to the subject matter thereof and supersedes all prior agreements whether written or oral.

11.2. Amendments. In order to amend the Agreement, both Parties must execute a written document clearly stating what is being amended.

11.3. Assignment. Neither Party may assign the Agreement without consent of the other Party, except that either Party may assign the Agreement without consent of the other Party to any successor to all or substantially all of its assets, whether by purchase, merger, reorganization or otherwise.

11.4. Force Majeure. Neither Party shall be liable for any failure or delay in performing its obligations under the Agreement (other than monetary obligations) to the extent caused by events beyond its reasonable control, including acts of God, war, riot, fire, flood, epidemic, strike, governmental action, or internet outage.

11.5. Notices. All notices must be in writing and delivered to the email address listed in the MSA. Notice will be effective upon delivery. All email notices shall be followed with a copy to the physical address of the applicable Party as set forth in the MSA.

11.6. Severability. If any provision of the Agreement is found invalid or unenforceable under judicial decree or decision, the remainder will remain valid and enforceable according to its terms.

11.7. Counterparts. The Agreement may be executed in multiple counterparts, including through an e-signature platform.

11.8. Termination. Any provision of the Agreement that, by its nature, is intended to survive termination or expiration (including confidentiality, intellectual property, limitation of liability, indemnification, non-compete, non-solicitation, and payment obligations) shall survive such termination or expiration.

12.1. Definitions.

• “Competing Services”: Managed IT, cybersecurity, IT consulting, or technical services substantially similar to those provided to the Client by Nine Minds.
• “Key Personnel”: Nine Minds employees or contractors who: (i) had direct involvement in delivering Services to the Client, and (ii) had access to Nine Minds’ Confidential Information or Client data.
• “Restricted Period”: During the Term and for twelve (12) months thereafter.
• “Restricted Territory”: The State of Texas, and any county in which the Client received Services.

12.2. Acknowledgment. The Client acknowledges Nine Minds invests substantial resources in:

• Developing its Confidential Information, including confidential methodologies, playbooks, and tools
• Building client relationships in the Texas IT services market
• Training Key Personnel in Nine Minds’ proprietary processes

In exchange for Nine Minds’ commitment to the foregoing, the Client agrees to be bound by the restrictions below.

12.3. Non-Competition (Client). During the Restricted Period and within the Restricted Territory, the Client shall not, directly or indirectly: (a) engage in Competing Services in competition with Nine Minds; or (b) own, manage, operate, or control, directly or indirectly, or be employed by any entity offering Competing Services targeting Nine Minds’ clients.

Exception: This restriction shall not apply if the Client’s internal IT team performs services solely for the Client’s own use and not for third parties.

12.4. Non-Solicitation of Key Personnel (Client). During the Restricted Period, the Client shall not: (a) solicit, recruit, or hire any Key Personnel; or (b) induce any Key Personnel to terminate their relationship with Nine Minds.

Permitted: Key Personnel responding to general public advertisements not targeted at any Key Personnel.

12.5. Non-Solicitation of Clients (Nine Minds). During the Restricted Period, Nine Minds shall not solicit any Client employee or affiliate for Competing Services if such solicitation uses the Client’s Confidential Information.

12.6.  Enforceability & Reformation. The Parties agree this covenant is reasonable and necessary. If any portion is held unenforceable, a Texas court may reform (blue-pencil) the provision to the maximum extent permitted under Tex. Bus. & Com. Code § 15.51(c).

12.7. Injunctive Relief. The Parties agree that a breach of this Section 13 would cause the non-breaching Party irreparable harm. The non-breaching Party it entitled to immediate injunctive relief without posting bond.

The Nine Minds Group LLC
Address: 404 W 9^th St Ste 201, Georgetown, Texas 78626 | Email: legal@thenineminds.com | Phone: (512) 910-8089