This TwinX™ Software License Agreement (this “Agreement”), applies to the Software licensed under an Software Order Form that references and incorporates the terms and conditions of this Agreement and is executed between the Customer and Tata Consultancy Services Limited or its Affiliate (hereinafter “TCS”) identified on the Software Order Form
Customer and TCS are sometimes individually referred to as a “Party” and collectively as “Parties” throughout this Agreement, and the words Party and Parties shall be construed accordingly.
NOW, THEREFORE, for and in consideration of the mutual promises contained herein and other good and valuable consideration, sufficiency of which is hereby acknowledged, the Parties hereto agree as follows:
1. DEFINITIONS
| Affiliate | “Affiliate” shall mean with respect to any entity, any other entity that at such time directly or indirectly through one or more intermediaries controls, or is controlled by, or is under common control with, such entity, where control means ownership or control, direct or indirect, of more than fifty (50) percent of such entity's voting capital/securities of such entity or has the right or power to designate or elect the majority directors or other management personnel or otherwise has the right or power to control its operating management decisions but only so long as such ownership or control exists. |
| Agreement | Shall mean this Software License Agreement including all applicable Software Order Forms and any documents referenced hereto or in the relevant Software Order Form. |
| Agreement Term | As defined in Section 10.1 |
| ASP | Shall mean an application service provider providing another Person software-based application solutions that enables such other Person with transaction processing ability by remote access or other available means through the application software installed at such service provider’s site. |
| Authorized User(s) | Shall mean the individuals authorized by Customer to Use the Software on behalf of Customer. |
| BSP | Shall mean a provider of business processing services, including management of the associated business process as a service bureau, using software based application solutions. |
| Customization | Shall mean works prepared in connection with the Software, based upon or derived from Software or other proprietary material, including without limitation, a revision, modification, customization, enhancement, improvement, addition, extension, interfaces, configurations, models, adapters, plug-in, translation, abridgment, condensation, expansion, or any other form in which such material or any proprietary portion thereof may be recast, transformed, or adapted, or which, if prepared without authorization of the owner of the Intellectual Property Rights in such material would constitute an infringement of any such proprietary right. |
| Documentation | shall mean TCS’ then-current technical, functional, support or other informational documentation which is delivered electronically or made available to Customer related to or in connection with the Software. |
| Fees | Shall mean fees for the Software listed in the applicable Software Order Form as “License Fees”; fees for Software Support as specified in the applicable Software Order Form as “Maintenance Fees”; any other fees payable as specified in the relevant Software Order Form; fees for the Services as specified in the applicable SOW. |
| Licensed Operations | Shall mean the operations of the Customer for which the Customer is entitled to Use Software pursuant to the license granted under this Agreement, with the restrictions on the scope of license as set out in this Agreement and the relevant Software Order Form. |
| Licensed Territory | Shall mean the country or countries or such geographical area(s) specified in the relevant Software Order Form, within which the Use of Software is permitted under this Agreement. |
| Customer Material | Any data, information or materials, such as Customer requirements, Customer technical specifications, or software, other graphic or audio-visual materials provided by Customer to TCS in connection with relevant Software Order Form. |
| Open Source Software or OSS | Shall mean the software covered by so called OSS Licenses |
| OSS License | Shall mean the software license approved as open source license by the Open Source Initiative, Free Software Foundation or any substantially similar open source license. |
| Permitted Site | Shall mean Customer’s premises or data centre identified and set out in the relevant Software Order Form or such other location owned or leased by or under the control of Customer that may be substituted in accordance with Section 2.9. |
| Person | Shall mean any natural person, corporation, limited liability company, general partnership, limited partnership, proprietorship, other business organization, trust, union, association or Governmental Authority. |
| Services | Means any professional services with respect to or in relation to the Software provided by or on behalf of TCS or its Affiliates to the Customer or to its Affiliates such as installation, configuration, implementation, integration, Customization, etc., and any other professional services using the Software under a SOW. |
| Software | Shall mean Means i) any and all software as specified in the applicable Software Order Form; ii) any new releases, Updates, Upgrades or versions thereof made available to Customer as per Software Support terms or otherwise; iii) Customization, if any, provided to Customer in accordance with relevant agreement; iv) Documentation; v) any complete or partial copies of any of the foregoing. Sub-items i), ii), iii) and v) refer to object code (machine readable form) only. |
| Software Order Form | Shall mean each order form for the Software, related Software Support ordered by the Customer, Fees and any other related information executed between the Parties identified on the applicable order form that references and incorporates by reference this Agreement and describing any Software specific terms applicable to each of the Software licensed thereunder. Each executed Software Order Form shall form part of this Agreement. |
| SOW | Shall mean a statement of work, work order or other equivalent ordering document executed by the Parties for the Services to be performed and Deliverables (if any) to be provided for a specific engagement. |
| Target Environment | Shall mean Customer’s controlled environment comprising hardware, software and operating environment required for the deployment, testing and operation and Use of the Software as described in the relevant Software Order Form or relevant Documentation, whether on-premises at Customer facilities or on Customer-provided cloud infrastructure. |
| Term | Shall mean the time period for which a Software is licensed as specified in the applicable Software Order Form. |
| Third Party Software | Any third party software, including Open Source Software, that are contained in the versions of the Software licensed under the relevant Software Order Form. |
| Update | Shall mean any bug fixes, patches, maintenance releases and minor version releases of the Software, if any, planned and developed by TCS, from time to time, for general distribution to the licensees of the Software who purchase or subscribe to the Software Support for the Software. Updates to the Software are denoted by a change to the right of the first decimal point (e.g., v6.1 to v6.2) |
| Upgrade | Shall mean a version of the Software that includes major enhancements, improvements or new functionality and, which is denoted by a change to the left of the first decimal point (e.g., v6.0 to v7.0) |
| Use | Shall mean operating the Software in object code (machine readable form) only for the business operations and as limited in scope by the Licensed Operations (as defined in the relevant Software Order Form) including the acts of installing, executing, processing, transmitting, transferring, loading and storing of data by Authorized Users in connection with the business of the Customer. |
2. LICENSE GRANT, CONDITIONS, RESTRICTIONS
This Agreement and the terms of license apply to the Software listed in relevant Software Order Form executed pursuant to this Agreement.
2.1 Subject to Customer’s compliance with the terms and conditions of this Agreement, and payment by the Customer of the applicable Fees, TCS hereby grants to Customer and Customer hereby accepts, a non-exclusive, non-transferable, non sub-licensable and limited copyright license to Use and to permit Authorized Users to Use the Software at Permitted Sites, on the Target Environment and for the Licensed Operations within the Licensed Territory during the Term as specified in the applicable Software Order Form executed with reference to and incorporating the terms and conditions of this Agreement.
2.2 The License granted to the Customer is conclusively defined in this Agreement and the relevant Software Order Form. All rights not expressly granted herein are reserved to TCS. Any extension or change of the contractual Use of the Software requires TCS’ prior written consent and authorization. The Customer is responsible to ensure compliance with all license restrictions and other applicable terms and conditions of this Agreement by each Authorized User. If the Licensed Operations permit Use of the Software by an Affiliate of Customer at any time under this Agreement, Customer shall ensure that such Affiliate shall agree and abide by the terms and conditions of this Agreement and shall assume full responsibility for any act or omission of such Affiliate. Any breach or non-compliance of the terms and conditions of this Agreement by any Authorized User or an Affiliate shall be deemed to be a breach or non-compliance by the Customer.
2.3 Except as may be otherwise agreed to in writing in the relevant Software Order Form, the license granted hereunder does not authorize the Use of the Software for :
a) processing any business of any Affiliate of Customer (“Affiliate’s Business”),
b) for additional business of Customer or an Affiliate resulting from or arising in connection with the acquisition by Customer or a permitted Affiliate of the assets or business of any other entity or merger or amalgamation of another entity with Customer or its permitted Affiliate (“Acquired Business”).
c) Each Affiliate Business and Acquired Business is referred to in this Agreement as a “New Business.”
2.4 The Customer may increase or extend the Licensed Operations including for the purpose of any New Business, only with the prior written consent of TCS and payment of then current additional License Fees payable, if any, for such increase or extension of the Licensed Operations. If at any time Customer desires to so increase or extend the License Operations, TCS and Customer will negotiate in good faith the terms and conditions and the applicable additional License Fee for such increase or extension.
2.5 Customer agrees to maintain and use systems and procedures that allow Customer to accurately and completely track, document, and report entitlements and Use of Software and provide information and attestation relating to its Use of Software, as required by TCS to verify Customer’s compliance with the Agreement and relevant Software Order Form. Customer shall maintain a written, up to date list of current Authorized Users and any Licensed Operations metric as agreed under the relevant Order Form and provide such information to TCS or its designated agent within five (5) business days of the written request at any time by TCS or its designated agent, in order to verify compliance. Customer must provide TCS or its designated agent any information it reasonably requests in furtherance of the verification, including access to systems running the Software and evidence of licenses for the Software. TCS may share the relevant results of any such verification with TCS’ own licensor(s). If any compliance verification reveals Customer to have used the Software in a manner not compliant with the applicable terms, Customer shall, in addition to immediately paying TCS for any additional amounts due at Software then-current prices, reimburse TCS for the costs of such compliance verification. By invoking the rights and procedures described above TCS does not waive its rights to enforce this Agreement or to protect its intellectual property by any other means permitted by law. If such verification does not reveal any non-compliance, TCS will not undertake another verification for the same Software under the relevant Order Form for at least one year.
2.6 The Customer acknowledges that any Customization of the Software may be carried out only by TCS or with the prior written consent of and based on specific agreement with TCS and no third party other than TCS, may be allowed to provide such services. Before involving any third party in creating Customization of the Software, if permitted by TCS, the Customer shall provide TCS with a written, legally binding statement of the third party, whereby it assumes an undertaking towards TCS and its licensors that it will observe the provisions of this Agreement.
2.7 Customer shall retain all of TCS’s and/or its licensors’ logo, trademark, copyright notice and other proprietary markings or notice on the Software. The Customer shall include on all copies of all or part of the Software, any proprietary markings or notices as they appeared in the Software. Customer will have no rights in any trademarks or service marks or trade names adopted by TCS and/or its licensors for the Software or any part thereof.
2.8 Copying of the Software is prohibited unless expressly authorized in this Agreement or the relevant Software Order Form Customer is responsible for controlling the original Software and any copies thereof and ensuring that the Use thereof is in accordance with the terms and conditions of this Agreement.
2.9 All software and hardware equipment onto which all or part of the Software is copied must always be in a Permitted Site and in direct possession and control of Customer. Customer may, upon written advance notice to TCS, relocate the Software to another Permitted Site and may install or permit the installation of the Software at such new Permitted Site, provided that the Software shall not be installed at more than one Permitted Site at any given time, and as soon as Customer relocates the Software to a new Permitted Site, Customer will notify TCS of the address of the new Permitted Site. Customer is responsible to include reproduction of all of TCS’ copyright notice and other TCS proprietary markings on every copy of the Software made by or on behalf of Customer as they appeared in the Software. Copies which are no longer needed must immediately be destroyed. Except as provided in this Agreement, Customer shall not, nor permit others to, make copies of the Software.
2.10 In case the Permitted Site is not in the direct possession and control of the Customer, but on a third party infrastructure service provider (hereinafter referred to as “Service Provider”), the Customer shall ensure that the Service Provider complies with the terms and conditions of this Agreement. If TCS reasonably requires that such Service Provider enters into a confidentiality and intellectual property protection agreement with TCS, Customer shall ensure that such Service Provider enter into an appropriate agreement directly with TCS prior to Software being made so available or installed. Any violation or misappropriation of TCS’ intellectual property rights in or to Software or breach of confidentiality obligations by Customer’s such Service Provider shall be deemed to be a material breach or non-compliance by the Customer for which Customer shall remain liable.
2.11 Unless otherwise agreed to in writing by TCS, Customer shall not, and shall not permit or enable any other party or person, directly or indirectly, to:
(a) make the Software or its functionality available to any party other than an Authorized User;
(b) reverse engineer, disassemble, de-compile, re-create, enhance, modify or create derivative works of the Software;
(c) circumvent, bypass, delete or remove any form of protection, or usage, functionality or technical restrictions or limitations, or to enable functionality disabled by TCS, in connection with the Software;
(d) interfere with or disrupt the integrity or performance of the Software or any portion thereof;
(e) use the Software to provide any Application Service Provider (“ASP”) or Business Processing Service Provider (“BSP”) services;
(f) rent, lease, lend, sublicense, distribute, timeshare or provide commercial hosting services with the Software;
(g) file for any patents, or seek other intellectual property protection, on any inventions or other intellectual property learned from or relating to or derived from the Software or any related materials, anywhere in the world;
(h) use the Software in any manner or for any purpose that violates or contravenes any law or regulation or the rights of others;
(i) perform or disclose any security testing, including without limitation, penetration testing, remote access testing, network discovery, vulnerability scanning, password cracking, etc., of the Software;
(j) use the Software on any part thereof for purposes of: competitive or comparative analysis; the development, provision or use of a competing software or service; or any other purpose that is to the TCS's detriment or commercial disadvantage;
(k) issue any press release or make any other public communication, directly or indirectly, with respect to this Agreement or use of the Software; or
(l) use the various Software components independently or separately of each other or for creating a stand-alone product for use or for offering or marketing to others or for using it with any other deliverables not provided by TCS.
2.12 Customer acknowledges that outputs are recommendations, insights and simulations, not facts and are dependent on Customer inputs, assumptions, configurations, data completeness and scenario parameters, and Customer remains responsible for validating outputs before acting on them. Customer acknowledges that the Software and any simulations, recommendations, forecasts, optimizations, outputs or other results generated by or through the Software are intended solely to support Customer’s internal business experimentation and decision support and are not intended to be relied upon as the sole basis for decisions especially in high-risk or high-stakes scenarios. Accordingly, Customer shall not use, and shall ensure that its Authorized Users do not use, the Software or its outputs (a) in any situation or environment where a failure, time delay, error or inaccuracy could lead to death, personal injury, or severe physical or environmental damage, including without limitation the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, transportation systems, autonomous vehicles, life support or weapons systems; or (b) for any high-stakes category, key decision scenario, or regulated decision-making use case (including in regulatory environments and/or sensitive workloads) where such use could reasonably be expected to materially impact the legal rights, safety, livelihood, or essential services of individuals, or where applicable law requires specific approvals, certifications, validations, auditability or explainability for such use, unless expressly agreed in writing by TCS in the applicable Software Order Form and/or SOW. Any use in breach of this Section shall be deemed a material breach of this Agreement. TCS disclaims any warranties on the Software in such situations or environments and any losses or damages arising therefrom.
2.13 Should the Software be used beyond the license set out in this Section 2, TCS shall be entitled to terminate the license granted hereunder in respect of such Software, without prejudice to any other rights or remedies TCS may have under this Agreement or otherwise.
2.13 As between TCS and Customer, Customer shall be responsible for (a) acquisition, installation and maintenance of the Target Environment; (b) acquiring necessary permissions or approvals from all relevant third parties for the purpose of enabling any necessary interconnections and interfaces between the Software and the third party products used in the Customer Environment (c) complying with the applicable terms and conditions of the respective third party products used in Target Environment (d) choice, installation, use and maintenance of any third party software not forming part of the Software, which is and/or to be used in relation to the Software, (e) making regular back-ups of Customer’s data processed via the Software, and (f) complying with any laws or regulations applicable to Customer; and remain liable for any breach or non-compliance of any of the foregoing.
3. DELIVERY AND ACCEPTANCE
3.1 The delivery of the Software shall be effected by TCS when it electronically transfers the Software directly to the Customer a copy of the Software or makes available the Software for download from a specified link. The delivery of the Software will be considered to be complete within five (5) days of the notification of availability of download thereof unless within that period the Customer makes a report to the contrary to TCS. Complete or partial commencement of the processing of its operations by the Customer using all or part of the Software shall be deemed to be immediate acceptance of all the Software. If you are a Customer in the European Union, Tata Consultancy Services Limited is the supplier of the Software for the purpose of the EU Artificial Intelligence Act.
3.2 Customer shall be responsible for choosing, installing and using the Software and for the results achieved therewith. Customer is aware of the essential functional features of the Software and it is responsible for ensuring that the Software satisfies its requirements. When using the Software, the Customer shall observe the guidelines set down in the pertinent Documentation. The Customer agrees to install any fixes, patches, Updates, Upgrades (if purchased by Customer) or other releases of the Software made available in due time.
3.3 The Customer undertakes to ensure that telecommunication lines are available and maintained between the Permitted Site and TCS’ nominated support facilities as indicated in the support documentation. The Customer shall also take reasonable precautions in case all or some of the Software supplied to it works incorrectly, such precautions being emergency procedures, data protection, regular back-up of data, virus checks, regular checks of results, etc.
4. FEES
4.1 Customer shall pay to TCS the License Fees, Maintenance Fees, or any other applicable Fees, in the amount and manner set forth in the applicable Software Order Form. TCS shall submit invoices for the Fees as per the payment terms set forth in Software Order Form. Payment of invoices shall be made by Customer to TCS within 30 days following receipt of each such invoice or as may be agreed to in the applicable Software Order Form. If there is any delay in payment of the amount due, without prejudice to other rights available to TCS, TCS shall be entitled to interest @ 18 % p.a. or as may be otherwise agreed to in the applicable Software Order Form or the maximum rate permitted by law, whichever is lower, calculated on the amount due from the date the payment became due until the recovery is made in full with interest. All Fees will be non-refundable except as provided in this Agreement or required under the applicable law.
4.2 All Fees to be paid under any Software Order Form pursuant to this Agreement are exclusive of any taxes, duties, or similar charges imposed by any government. Customer shall be responsible for all federal, state, dominion, provincial, or local sales, use, value added, service or other similar taxes that may be imposed by any applicable taxing jurisdictions upon Customer or TCS, relating to the Software delivered hereunder or the Fees payable therefor. Provided however that TCS shall be solely responsible for any corporate taxes and income taxes based upon the income of TCS.
5. WARRANTY:
5.1 Each Party represents, warrants and covenants to the other that:
a) this Agreement constitutes the legal, valid and binding obligation of it, enforceable against it in accordance with its terms, except as such enforceability may be limited by bankruptcy laws and other similar laws affecting creditors’ rights generally and by general principles of equity;
b) the execution, delivery and performance of this Agreement by it does not and will not conflict with, or constitute a breach or default under, its charter documents or any agreement, contract, commitment or instrument to which it is a party.
5.2 TCS warrants to Customer that TCS or its Affiliates own, and/or TCS is authorized to grant the rights and licenses to, the Software as set forth in the relevant Software Order Form.
5.3 Customer warrants to TCS that the Customer owns, has the rights and is authorized to provide the Customer Materials and grant the rights and licenses to the TCS as contemplated in the Agreement or any Schedule thereto.
5.4 Except for the warranties contained in this Section 5, TCS makes no other representations or warranties either, express or implied, including, without limitation, any implied warranties, merchantability, quality, fitness for a particular purpose, any legal or regulatory compliance requirements, quiet enjoyment, system integration, configuration, accuracy, reliability, error-free, un-interruption, support correction or repair (unless otherwise agreed), or that the Software or portion thereof or any output will meet Customer’s business requirements or operate with Customer’s existing systems or in every combination or environment desired by Customer with any data, devices, computer systems and programs of its choice or that the remedying of one error does not result in the occurrence of other errors or otherwise any warranties arising out of any course of dealing or usage or trade. All such representations and warranties are hereby disclaimed. To the extent, a law applies to Customer in a particular jurisdiction that does not allow the exclusion of certain warranties, some or all of the exclusions set forth above may not apply to Customer, and Customer may have additional rights.
6. CONFIDENTIAL INFORMATION:
6.1 “Confidential Information” means any information disclosed by either Party to the other Party that designated as “Confidential,” “Proprietary” or some similar designation, or that in the circumstances would be considered confidential. Confidential Information of TCS includes without limitation the Software, underlying technology, operation of or methods, techniques, tools or processes used in creating, developing, applying or maintaining the Software, pricing therefor, and any product plans or roadmaps or any other materials or information provided by TCS, whether or not marked as confidential. Confidential Information of Customer includes any Customer data that may be provided by Customer to TCS for purposes of Maintenance Services.
6.2 Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing Party; (ii) becomes publicly known and made generally available after disclosure by the disclosing Party to the receiving Party through no action or inaction of the receiving Party; (iii) is already in the possession of the receiving Party at the time of disclosure by the disclosing Party as shown by the receiving Party's files and records immediately prior to the time of disclosure and not subject to an existing agreement between the Parties; (iv) is obtained by the receiving Party from a third party under no obligation of confidentiality, unless the receiving Party knew that the third party's disclosure breaches obligations of confidentiality; (v) is independently developed by the receiving Party without use of or reference to the disclosing Party's Confidential Information, as shown by documents and other competent evidence in the receiving Party's possession; or (vi) is required by law to be disclosed by the receiving Party, provided that the receiving Party gives the disclosing Party prompt written notice of such requirement prior to such disclosure (to the extent allowed by law) and assistance in obtaining an order protecting the information from public disclosure and provided that the receiving Party limits the disclosure to the requisite minimum and informs about the confidentiality of the information at the time of the disclosure.
6.3 Each Party agrees not to use any Confidential Information of the other Party for any purpose except to only to perform its obligations under this Agreement and to the extent permitted, exercise such Party’s rights granted hereunder. Each Party shall not disclose any Confidential Information of the other Party to third parties or to such Party's employees, except to those employees of the receiving Party who are required to have the information in order to perform its obligations under this Agreement and to the extent permitted, exercise such Party’s rights granted hereunder.
6.4 Each Party shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other Party. Without limiting the foregoing, each Party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other Party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. Neither Party shall make any copies of the Confidential Information of the other Party unless the same are previously approved in writing by the other Party. Each Party shall reproduce the other Party's proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.
6.5 Customer agrees that TCS and its Affiliates may collect and use technical information relating to the use of the Software and/or Services during its performance under this Agreement, comments, inputs or feedback that Customer may provide regarding the Software and/or Documentation, without any restriction, payment or accounting to Customer, including without limitation, to improve its products or to provide customized services or technologies to Customer and will not disclose this information in a form that personally identifies the Customer.
7. OWNERSHIP AND PROPRIETARY RIGHTS
7.1 As between the Parties, Customer acknowledges and agrees that TCS and/or its Affiliates and/or their respective licensors does and will continue to own all intellectual property and intellectual property rights in or attached to the Software and any and all methods, techniques, tools, utilities or processes used in creating, developing, implementing, applying or maintaining the Software even if made or implemented by or on behalf of the Customer. TCS hereby reserves all rights not expressly granted herein. No rights shall be licensed by implication under this Agreement. For removal of doubt, it is clarified that any Customization of the Software made pursuant to this Agreement or under any other agreement, even if made by or on behalf of, or for the Customer, and any and all intellectual property rights in or to the same shall, notwithstanding anything contrary to in any other agreement, continue to vest with TCS or its licensors and Customer’s use thereof will be subject to and governed by terms and conditions of this Agreement.
7.2 Unless otherwise agreed to in the relevant Software Order Form, Customer agrees that TCS may list Customer’s name in its marketing material in the list of customers of the Software and for reference purposes. Any use of Customer’s logo with respect to such listing and for reference purposes shall be with express written permission of the Customer.
7.3 Nothing in this Agreement shall prevent TCS from transacting similar business either for itself or for any other Person or to offer same or similar products or services to any third parties.
8. INDEMNIFICATION:
8.1 Subject to Section 8.4, TCS will defend, or at its option settle, any unaffiliated third party claim against Customer in the Licensed Territory alleging the Software licensed under the applicable Software Order Form, when used in accordance with this Agreement during the Term, infringes the registered Intellectual Property Rights of a third party (“Infringement Claim”) in the Licensed Territory and shall pay any and all third-party damages, losses, assessments, charges, costs, including without limitation reasonable legal fees and disbursements, and court costs (“Losses”) arising therefrom which are finally decided by a court of competent jurisdiction, or arrived at during settlement of such third party claim; provided that the TCS shall have no obligations to the Customer under this Section 8.1 or Section 8.2 below, to the extent any such Infringement Claim arises or results from
a) modification of the Software, if such modification was not made by TCS; or
b) operation or use of the Software in combination with Customer Materials or third party products, systems, hardware or software, or with third party services, processes or materials, where the infringement would not have occurred but for such combination; or
c) TCS’s compliance with any specific requirements, instructions or technical designs of the Customer or otherwise arising out of or in relation to any Customer Material; or
d) use of the Software for any purposes for which the same have not been designed or developed or other than in accordance with this Agreement or any applicable Documentation or specifications; or
e) Customer’s failure to implement reasonable corrections, revisions, Updates or Upgrades provided by TCS, the use of which would have prevented any such Claim; or
f) Customer’s continued use of the Software or other allegedly infringing activity after receiving notice of the alleged infringement; or
g) any version of the Software which is no longer supported by TCS.
8.2 Subject to the forgoing provisions, in the event that any Infringement Claim is initiated against Customer, or in the TCS’ sole opinion is likely to be initiated for which the TCS is liable in terms of Section 8.1 above, then TCS shall have the option, at its expense, to either:
a) modify or replace the infringing part of the relevant Software so that such part is no longer infringing; or
b) procure for Customer the right to continue using the infringing Software;
If neither of options (a) and (b) under Section 8.2 is reasonably possible or effective, and if the infringement is established by a final decision of the competent court or through a extrajudicial settlement, TCS shall accept the return of the relevant Software and terminate all rights and licenses granted to Customer and refund to Customer an amount equal to the: (i) the portion of pre-paid relevant License Fee for the unutilized portion of the applicable Term under the relevant Software Order Form in case of limited period license, or (ii) the amount equal to the unamortized balance of the relevant License Fee paid by Customer under this Agreement, calculated on a straight line basis over a period of three years commencing on the start date of the relevant Software set out in the relevant Software Order Form of this Agreement in case of perpetual License (for the term of the copyright in the licensed Software) and portion of the pre-paid Maintenance Fee, if any, paid for the unutilized portion of the then current year of maintenance purchased by the Customer.
The foregoing provisions in Sections 8.1 and 8.2 state the TCS’ entire liability and Customer’s sole remedies with respect to any Infringement Claim.
8.3 Customer agrees to defend, indemnify and hold TCS and its Affiliates, licensors and its/their respective directors, officers, agents, employees, co-branders or other partners, harmless from any third party claim or demand or expense and Losses, due to or arising out of sub-sections (a) to (g) of Section 8.1 or any matters connected therewith.
8.4 A Party shall not be entitled to seek any indemnification from the other Party unless such party provides the other Party with
a) prompt written notice of any claim, demand or action for which such party is seeking or may seek indemnification hereunder and gives the indemnifying Party the right to have sole control over the defence and settlement negotiations with counsel of its own choosing;
b) does not make any statement or admission in relation to such claim which may prejudicially affect the chances of settlement or defence of such claim; and
c) reasonably cooperate with the indemnifying party in assisting the defence of the claim and in the negotiations or settlements of any such claim, demand or action by providing all assistance and information to perform the above obligations.
9. LIMITATION OF LIABILITY
9.1 Except as set forth in Sections 9.3, neither Party shall be liable to the other for any indirect, incidental, consequential, exemplary, punitive, special or cover damages or for loss of profit, revenue, business reputation, goodwill or investments, or anticipated savings, loss or corruption or interruption of or damage to data, business interruption, or use or loss of use, or procurement of substitute goods or services, however caused and whether in contract, tort or other theories of law/liability, arising from or in connection with this Agreement, even if advised of the possibility of such damages or liabilities.
9.2 Except, as set forth in Section 9.3 and for breach of confidentiality obligations (but excluding any breach of personal data or breach of privacy or data protection laws by TCS), the aggregate liability of either Party for all direct damages arising from or relating to this Agreement (whether in contract, tort or any other theories of law) shall not exceed the total amount of applicable License Fees for the relevant Software paid by the Customer to TCS under the applicable Software Order Form during twelve (12) months immediately preceding the relevant event giving rise to such liability. Failure of the Customer to pay the applicable Fees owing to TCS under this Agreement shall not be subject to the aforesaid liability cap amount.
9.3 The limitation/exclusion on any Party’s liability as set forth in Section 9.1 and Section 9.2 shall not apply to liability for damages,
a) Resulting from the wilful misconduct of that Party, its affiliates, employees or agents, or anyone for whom it is in law responsible;
b) Obligations under Section 8 (Indemnity); and
c) Due to infringement or misappropriation of intellectual property rights by Customer arising from use of the Software by Customer, its Authorized Users or Affiliates in a manner not licensed under this agreement.
9.4 Neither Party shall be liable for any delay or failure in the performance of its obligations under this Agreement, if and to the extent such delay or failure is caused by the actions or omissions of the other Party or other Party’s agents or due to a breach of any terms of this Agreement by the other Party. In the event that TCS is delayed or prevented from performing its obligations due to such failure or delay on the part of or on behalf of the Customer, TCS shall be allowed an additional period of time to perform its obligations and unless otherwise agreed the additional period shall be equal to the amount of time for which TCS is delayed or prevented from performing its obligations due to such failure or delay on the part of or on behalf of the Customer. Such failures or delays shall be brought to the notice of the Customer and subject to mutual agreement with the Customer, TCS shall take such actions as may be necessary to correct or remedy the failures or delays. TCS shall be entitled to invoice the Customer for additional costs incurred in connection with correction or remedy as above.
10. AGREEMENT TERM AND TERMINATION
10.1 This Agreement shall become effective as of the Start Date mentioned for the Use of relevant Software in the applicable Software Order Form and shall continue to remain in effect until the expiry of the applicable Software Order Form, unless this Agreement or applicable Software Order Form is terminated in accordance with the provisions herein.
10.2 Either Party may terminate this Agreement or the applicable Software Order Form forthwith by delivering written notice to this effect to other Party:
a) for any breach of any provision of this Agreement or applicable Software Order Form which is not curable; or for any breach(es) of the provisions of this Agreement or applicable Software Order Form which, if curable, remain to be cured on expiry of thirty (30) days cure period provided under a written notice served on the other Party specifying the breach and seeking cure thereof; or
b) if the other Party has a receiver, administrator or liquidator appointed to the whole or any substantial part of its assets or if an order is made or a resolution passed for the winding up of the other Party which is not revoked or stayed within fifteen days.
10.3 In addition, TCS may terminate this Agreement or the applicable Software Order Form, in the event of the direct or indirect assumption of Control of Customer, or of substantially all of the Customer’s assets, by any government or governmental agency, or if 50% or more than fifty percent (50%) of the equitable ownership of Customer is acquired by any competitor of TCS; or if the Customer assigns or purports or attempts to assign any of its duties or rights under this Agreement without the prior written approval of TCS or other than as allowed pursuant to the terms of this Agreement.
10.4 In addition to the right of termination as above said, TCS shall be entitled to recover damages (including consequential and punitive damages where appropriate and applicable from Customer and /or obtain injunctive relief for preventing the continued breaches and any future breaches of this Agreement.
10.5 In the event of termination of this Agreement for any reason whatsoever or expiry of this Agreement, the rights and licenses granted to the Customer under all Software Order Forms executed hereunder will immediately terminate and the Customer will have no further right to use the Software. In the event of termination or expiration of a Software Order Form, the rights and licenses granted to the Customer under such Software Order Form executed hereunder shall immediately terminate and the Customer shall have no further right to use the Software licensed under such Software Order Form. Forthwith on termination or expiry, Customer must return all the copies of the Software, Documentation and Confidential Information in its possession or control to TCS, or at the sole discretion of and under the written instruction of TCS permanently destroy or disable all such copies. If requested by TCS, a duly authorized officer of the Customer will certify in writing to TCS that the Customer has complied with the provisions herein.
10.6 Termination or expiration shall be without prejudice to any other rights or remedies a Party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of a Party. Customer shall be liable to make payments of the entire Fees due under this Agreement or the relevant Software Order Form up to the effective date of termination in terms of this Agreement or relevant Software Order form. The provisions of this Agreement including the Software Order Form(s)) and any referenced documents necessary to determine, enforce or interpret the rights and obligations of the Parties shall survive any expiration or termination of this Agreement or relevant Software Order Form, including without limitation, Section 4 (Fees), Section 6 (Confidential Information), Section 7 (Ownership and Proprietary Rights), Section 8 (Indemnification), Section 9 (Limitation of Liability), Section 10.5 (Effect of Termination), Section 10.6 (Survival), Section 11 (Assignment), Section 14 (Applicable Law).
11. ASSIGNMENT
This Agreement shall be binding on and inure to the benefit of the respective Parties and their permitted successors and assigns. Customer may not sell, transfer or assign any right or obligation hereunder, except as expressly provided herein, without the prior written consent of TCS. For purposes of the foregoing, a change of control of Customer, or a merger, acquisition or sale of all or substantially all of the assets of Customer, shall be deemed an assignment. Any assignment in violation of this Section 11.1 shall be void. TCS may assign its rights hereunder to any of its Affiliates, or in connection with a reorganization, merger, acquisition or sale of all or substantially all of its assets relating to the Software or for Services to be performed in relation thereto.
12. SERVICES RELATING TO SOFTWARE
12.1 Subject to Customer paying all Fees under this Agreement, TCS is willing to provide, either by itself or through its Affiliates, Software Support with respect to the Software specified in the Software Order Form in accordance with our Software Support Documentation as identified in Software Order Form.
12.2 For activities to be carried at a location other than TCS’ premises, Customer shall arrange for and bear the expenses, direct and indirect, towards all cost items including travel by air where air links are available otherwise by alternative fast modes of transportation available, lodging, boarding and local conveyances of associate(s) engaged by TCS or such other person who is authorized by TCS for said activities. Customer shall hold TCS harmless and effectively indemnified from any loss, claim or damages, unless directly caused by the wilful negligence of TCS’ personnel, to any person or property arising out of the use or possession of the equipment or location by TCS or its personnel. Such indemnification shall extend to the attorneys fees spent by TCS in defending such a claim and any amount spent by TCS in settling such a claim, either by way of a court decree or otherwise. This Section shall survive the termination of this Agreement.
12.3 Customer may avail Services with respect to Software from TCS or through its Affiliates, by entering into a separate agreement for professional services referencing this Agreement and the applicable Software Order Form and executing a SOW there under for applicable Services and payment of Services Fees as set out therein.
13. THIRD PARTY SOFTWARE INCLUDED/CONTAINED IN THE LICENSED MATERIAL
13.1 The Software may contain certain Third Party Software. Notwithstanding the license grant in Section 2, Customer acknowledges that Third Party Software, if any, contained in the Software and the use thereof, shall be subject to the terms and conditions of the relevant third party proprietary or open source license agreement only. Information related to Third Party Software for a version of the Software licensed hereunder is provided in the relevant Documentation or relevant Software Order Form. Subject to the terms and conditions of the relevant OSS License, source code of the OSS shall be made available to Customer if so mandated under the relevant OSS License. To the extent the OSS License terms prohibit any of the restrictions in this Agreement with respect to such OSS, such restrictions will not apply to such OSS. To the extent the applicable OSS License terms require Licensor to make an offer to provide source code or related information in connection with an OSS, such offer is hereby made, and may be requested in accordance with Section 16 Customer acknowledges receipt of notices for the OSS for the initial delivery of the Software(s). In the event of any conflict between the terms and conditions of this Agreement and those in the relevant license agreement applicable to such Third Party Software, the terms of the applicable license agreement shall prevail with respect to use of that relevant Third Party Software
14. APPLICABLE LAW
14.1 This Agreement shall be governed by laws of jurisdiction where Tata Consultancy Services Limited or its branch office or its Affiliate which accepts the Software Order Form is organized or as may be otherwise agreed to specifically in the applicable Software Order Form, without giving effect to the conflicts of law principles thereof and Courts in such jurisdiction shall have the exclusive jurisdiction over any matter arising out of or connected with this agreement. The Uniform Computer Information Transactions Act or the U.N. Convention on the International Sales of Goods will not govern this Agreement.
14.2 The Parties will use their best efforts to resolve any controversy or claim arising out of or relating to this Agreement through good faith negotiations during a period of 10 business days after the date of a written notice of a controversy or claim.
14.3 Subject to Section 14.2, any disputes, controversy or claim arising out of or in connection with this Agreement will be finally settled by arbitration in accordance with commercial arbitration rules of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with said Rules for the time being in-force, which Rules are deemed to be incorporated by reference in this Section. The arbitration shall be conducted in English language and the seat of arbitration shall be city where Tata Consultancy Services Limited or its branch office or its Affiliate which accepts the Software Order Form which gives rise to dispute has its registered office or branch. If ICC does not have a seat such place, the seat shall be the city nearest to the place where Tata Consultancy Services Limited or its branch office or its Affiliate, which accepts the Software Order Form that gives rise to dispute, is, organized and ICC has a seat. Parties may agree to arbitration in accordance with arbitration rules of an institution other than ICC and/or seat of arbitration in the applicable Software Order Form. The arbitrator will be a third party mutually agreed to by the Parties, or if the Parties cannot agree, claims shall be heard by a panel of three arbitrators. Within thirty (30) days after the commencement of arbitration, each Party shall select one person to act as arbitrator and the two selected arbitrators shall select a third arbitrator within thirty (30) days of their appointment. If the arbitrators selected by each Party are unable or fail to agree upon the third arbitrator, the third arbitrator shall be selected by the arbitration institution. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing Party's actual damages. Neither a Party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both the Parties. Customer on behalf of itself and each Authorized User agrees to waive any right it may have to: (i) a trial by jury; and (ii) commence or participate in any class action against TCS, its Affiliates, licensors or subcontractors, related to this Agreement.
14.4 Notwithstanding the foregoing, either Party may apply to any court of competent jurisdiction for equitable relief, or other relief, including without limitation injunctive relief or specific performance, without posting any bond or other security, and in addition to its other remedies in the event either Party breaches or threatens to breach any of the provisions under Section 2 (License), Section 6 (Confidential Information) or Section 7 (Ownership and Proprietary Rights) or to enforce the provisions of Section 14.3.
15. TRAINING
In the event if the Customer requires additional training in respect of the Software not covered under Software Support, it shall be chargeable and shall be subject to mutual terms and conditions that would be agreed between the Parties. If TCS agreed to impart training, the training material shall be supplied only electronically.
16. NOTICES
All notices and other communications required under this Agreement will be in writing and sent to the address for such Party mentioned on the applicable Software Order Form, or to such other address as will be given by either Party to the other in writing, and will be effective:
a) upon actual delivery if presented personally or sent by express overnight courier (with a signature acknowledging receipt), or
b) seven days following deposit in the mail if sent by certified or registered mail, postage prepaid, return receipt requested to the party to be notified,
Copy of all notices to TCS shall be sent to the attention of The General Counsel, Tata Consultancy Services Limited, TCS House, Raveline Street, Fort, Mumbai, India 400 001.
17. EXPORT COMPLIANCE
Customer acknowledges and agrees that Software may be subject to local and extraterritorial export control and sanction/embargo laws, rules, regulations and policies (“Export Controls”). Customer shall not, directly or indirectly, export, re-export, divert or transfer any Software, any portion thereof, or technical data (or direct products thereof) or allow use or access thereof to any sanctioned, embargoed or designated individuals, entities or destinations or for prohibited purposes in violation of any applicable Export Controls which will include Russia, Belarus and high risk countries Ukraine, Sudan, Venezuela and Pakistan. Customer represents that it, its Affiliates, their respective employees and Authorized Users are not a person, entity or destination restricted, prohibited, sanctioned or embargoed by Export Controls or listed on list of parties of concern or other early warning systems published by various governments and agencies (“Restricted Person”) to which shipment of Software, or provision of Software Support or Services, is prohibited by the Export Controls. Customer is solely responsible for obtaining all necessary licenses or authorizations relating to the re-export, transfer or access of the Software, any portion thereof or technical data (or direct products thereof) and for ensuring compliance with the requirements of such licenses or authorizations. Customer shall provide TCS with any documents or declarations, which might be required under any applicable law, government regulation or government policy to comply with Export Controls. Customer shall, at its expense, defend TCS and its Affiliates from any third party claim or action made against TCS or its Affiliates arising out of Customer’s violation or alleged violation of the Export Controls and shall pay any judgments or settlements reached in connection with such claim as well as TCS and its Affiliates’ costs of responding to such claim.
18. EMPLOYEE NON-SOLICITATION
During the term of this Agreement and for six months thereafter, Customer and TCS agree that neither Party shall directly recruit or solicit for employment any employees of the other Party currently performing obligations or responsibilities in relation to this Agreement, without the prior written approval of the Party whose employee is being considered for employment. Nothing in the foregoing shall preclude or restrict either Party from utilizing recruiting tools not directly targeted to the other Party, such as but not limited to media advertising of employment opportunities in the internet or intranet or the use of third party recruiters providing such recruiters are not directly targeting the other Party.
19. LANGUAGE FOR COMMUNICATION
The official language for communication will be English. Further, all deliverable documents will be in the English language.
20. FORCE MAJEURE
Except with respect to payment obligations, neither Party will be liable for any failure or delay in the performance of its obligations under this Agreement to the extent such failure or delay or both is caused, directly or indirectly, without fault by such Party, by any reason beyond its reasonable control, including but not limited to, by fire, flood, explosion, earthquake, elements of nature, drought or bad weather, lightning or acts of God, acts of state, strikes, acts of war (whether declared or not), hostilities, terrorism, riots, civil disorders or commotion, lockouts, industrial disputes, rebellions or revolutions, blockages; quarantines, epidemics, pandemics, embargoes and other similar governmental action (each a "Force Majeure Event”). The Party so delayed in its performance will immediately notify the other Party by telephone or by the most timely means otherwise available (to be confirmed in writing within two business days of the inception of such delay) and describe in reasonable detail the circumstances causing such delay with relevant documentary supporting. However, the Party claiming such event shall take all commercially reasonable steps to mitigate the delay so caused in spite of such Force Majeure Event.
21. NO WAIVER
Either Party’s failure to exercise any right under this Agreement shall not constitute a waiver of any other terms or conditions of this Agreement with respect to any other or subsequent breach, or a waiver by such Party of its right at any time thereafter to require exact and strict compliance with the terms and conditions of this Agreement. In order to be effective, all waivers under this Agreement must be in writing and signed by the waiving Party.
22. SEVERABILITY
If any term, Section or provision of this Agreement shall be judged to be invalid for any reason whatsoever, such invalidity shall not affect the validity or operation of any other term, Section or provision of this Agreement and such invalid term, Section or provision shall be deemed to have been deleted from this Agreement.
23. RELATIONSHIP OF THE PARTIES:
The relationship of the Parties shall be that of independent contractors. Neither Party will represent that it has any authority to assume or create any obligation, express or implied, on behalf of the other Party, or to represent the other Party as agent, employee, or in any other capacity, except as specifically provided herein.
24. ENTIRE AGREEMENT; AMENDMENTS
This Agreement, along with the applicable Software Order Form executed pursuant to this Agreement and documents or policies referenced herein or in the applicable Software Order Form sets forth the entire agreement between the Parties and supersedes any other prior or contemporaneous communications, proposals, agreements and representations between them related to its subject matter, whether written or oral, between the Parties and all amendments and extensions thereof, which will be deemed to be superseded by this Agreement. For the avoidance of doubt, this Agreement shall in no way supersede any terms and conditions of any Third-Party Software license agreement. In the event of any conflict between the provisions of this Agreement and the provisions of the any Software Order Form or any related agreement, the provisions of this Agreement in Section 2 (License), Section 6 (Confidential Information), Section 7 (Ownership & Proprietary Rights), Section 8 (Indemnification) and Section 9 (Limitation of Liability) shall prevail. With respect to any other matters, the provisions of the Software Order Form shall prevail. For avoidance of doubt, if any Software Order Form or statement of work contains certain special terms that are applicable to the relevant Software or Services, to the extent such special terms do not conflict with the aforesaid provisions of the Agreement, the special terms in the Software Order Form or statement of work shall prevail. TCS may modify this Agreement (including any documents referenced herein or in the applicable Software Order Form) at any time by posting a revised version on the link provided on the Software Order Form (or its successor link/site). However, the Agreement which is effective as of the Start Date mentioned on the applicable Software Order Form shall continue to be applicable for the Term specified in such Software Order Form. The modified and then-current Agreement will become applicable from the effective date of a new or renewal Software Order Form except that any notices related to Third Party Software shall be applicable immediately. No terms or conditions in any Customer’s purchase order or similar document will be applicable, and TCS hereby rejects any such terms or conditions.
25. HEADINGS
The headings and subheadings are inserted for convenience of reference only and will not be used in interpreting or construing the provisions of the Agreement.
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TwinX Software License Agreement v 1.0 (Release Date: 15-June-2026)