SCHEDULE 1 : USE TERMS FOR TCS PROPRIETARY SOFTWARE OR TCS PROPRIETARY SOLUTION
Customer acknowledges and agrees that in performing Services under this Project Agreement / SOW, TCS will use proprietary software and intellectual property (“IP”) of TCS and/or its licensors including without limitation any software (or any part or component thereof), tools, methodology, processes, ideas, know-how and technology that are or were developed or owned by TCS and/or its licensors prior to or independent of the Services performed hereunder, including those comprised in, or related to, the TCS TwinXTM (“TCS Proprietary Software”) to develop and deliver the deliverables/services. It is understood and agreed by the Parties that deliverables developed and delivered and/or services provided hereunder shall require the TCS Proprietary Software and/or its Derivative Works or portion thereof for its development, deployment, management, operation and maintenance. Except with respect to Customer materials specifically identified in this SOW / Schedule to this Project Agreement to be owned by Customer and Customer data processed using the TCS Proprietary Solution (as hereinafter defined) which shall be owned by the Customer, Customer acknowledges and agrees that TCS shall retain all the ownership, the rights, title and interests in and to all TCS Proprietary Software and deliverables or any Derivative Works (as defined hereinafter in Terms of Use of TCS Proprietary Solution) created as part of or in the course of performing the Services hereunder including any intellectual property rights in or to the same. Such TCS Proprietary Software and/or its Derivative Works or portions thereof and the deliverables (collectively, “TCS Proprietary Solution”) are licensed to Customer on terms and conditions outlined in this SOW. TCS reserves the right to remove the source code for the TCS Proprietary Solution where source code of the TCS Proprietary Software is introduced or stored in the customer controlled environment to develop the TCS Proprietary Solution. Notwithstanding anything to the contrary contained in the Master Agreement, nothing contained herein shall be construed as preventing or restricting TCS from using TCS Proprietary Software, deliverables and/or its/their Derivative Works in any manner.
Notwithstanding anything contrary contained in the Agreement or SOW, access and use of TCS Proprietary Software or Solution by or on behalf of the Customer shall be governed only by the terms and conditions in this Schedule and in case of conflict between the terms of this Schedule and the terms of the Agreement or SOW and/or any other agreement, the terms of this Schedule shall prevail with respect to TCS Proprietary Software or Solution.
1. DEFINITIONS:
1.1 ‘Affiliate’ shall 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.
1.2 ‘Authorized Users’ shall mean shall mean the individual employees of Customer or its Affiliates (where applicable) authorized by Customer to Use the TCS Proprietary Software or Solution, within the limits of Licensed Operations prescribed in the relevant Annex to this Schedule, in accordance with Section 2 of this Schedule.
1.3 ‘Derivative Works’ shall mean works that are based upon or derived from TCS Proprietary Software or other proprietary material, including without limitation, a revision (e.g. updates and upgrades), modification, customization, enhancement or extension (e.g. creation of new or alternative micro-services or interfaces or extension of software data structures), improvement (e.g. additional content or metadata within existing feature or functionality), additions (e.g. new features, functionalities, applications or use cases), interfaces (including stand-alone interface code), configurations (e.g. data engineering, data manipulation techniques, workflows, orchestration, reports, artwork, visualizations and algorithms), models, adapters, plug-ins, 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.
1.4 ‘Documentation’ shall mean related user manual, developer guide, installation manual, release notes, specification of APIs, support and any other documentation and any updates thereof made available by TCS along with or in connection with the TCS Proprietary Software or Solution.
1.5 ‘Fee’ for the TCS Proprietary Software or Solution shall mean the license fee mentioned in Annex A to this Schedule
1.6 ‘Licensed Operations’ shall mean the operations of the Customer for which the Customer is entitled to Use TCS Proprietary Software or Solution pursuant to the license granted under this Schedule, with the restrictions on the scope of license as set out in this Schedule and the relevant Annex to this Schedule.
1.7 ‘Licensed Territory’ shall mean the country or countries or such geographical area(s) specified in the relevant Annex, within which the Use of TCS Proprietary Software or Solution is permitted under this Schedule.
1.8 ‘Permitted Site’ shall mean Customer’s premises identified and set out in the relevant Annex A to this Schedule.
1.9 ‘Target Environment’ shall mean Customer’s main processing computer system hardware, software and operating environment as described in the Documentation or relevant Annex to this Schedule.
1.10 ‘Use’ shall mean operating the TCS Proprietary Software or Solution in object code (machine readable form) only for the business operations and as limited in scope by the Licensed Operations of the Customer, including the acts of installing, executing, processing, transmitting, transferring, loading and storing of data by Authorized Users in connection with the internal business use of the Customer.
Capitalized terms used in this Schedule shall have the respective meanings set forth in this Schedule. Any capitalized terms used in the Schedule which are not specifically defined in the Schedule shall have the meaning as described in the Agreement/SOW.
2. TERMS OF USE:
2.1 Subject to Customer’s compliance to the terms and conditions set forth in this Schedule and payment by the Customer of the applicable Fees, if any, agreed, TCS will grant to Customer a non-exclusive, non-transferable license, during the Term, to permit Authorized Users to Use the TCS Proprietary Software or Solution in object code form only, at Permitted Sites, on the Target Environment and for the Licensed Operations within the Licensed Territory as mentioned in Annex A to this Schedule.
Where license to TCS Proprietary Software or Solution or any pre-release or beta version thereof is granted to the Customer for evaluation, proof-of-concept, pilot or other testing or trial of, or in relation to the TCS Proprietary Software or Solution or portion thereof (“Trial License”), the same is granted on ‘as is’ basis without any warranties or support, and without any liabilities whatsoever on TCS, notwithstanding anything contrary elsewhere in this Schedule or the Agreement. Such Trial License shall be non-exclusive, non-transferable, non-sub licensable, non-commercial, limited in time license only for the limited purpose of Customer’s internal evaluation and testing (identified in relevant Work Order/SOW) in a testing environment to permit Authorized Users to Use the TCS Proprietary Software or Solution in object code form only, at Permitted Sites, on the Target Environment and for the Licensed Operations within the Licensed Territory as mentioned in the relevant Work Order / SOW and subject to all the restrictions under this Schedule.
2.2 The Customer is responsible to ensure compliance with all license restrictions and other applicable terms and conditions by each Authorized User. Any breach or non-compliance of the terms and conditions by any Authorized User shall be deemed to be a breach or non-compliance by the Customer. If the Licensed Operations permit Use of the TCS Proprietary Software or Solution by an Affiliate of Customer at any time under this Agreement, Customer shall, ensure that such Affiliate shall agree to, and abide by, these terms and conditions and remain liable for any breach or non-compliance of the terms and conditions of this Agreement by such Affiliates. A list of Customer Affiliates which are permitted Use of the TCS Proprietary Software or Solution is included in the Licensed Operations. Customer will defend and indemnify TCS in respect of any breach of these terms and conditions by Authorized Users or its Affiliates or in respect of any act (or failure to act) by the Authorized Users or Affiliates which would constitute breach of these terms and conditions if carried out by the Customer.
2.3 Customer may make a reasonable number of machine-readable copies of the TCS Proprietary Software or Solution for backup or archival purposes. Customer shall not copy the TCS Proprietary Software or Solution, except as permitted by this Schedule or the relevant Work Order / SOW. All copies of the TCS Proprietary Software or Solution shall be subject to all terms and conditions of this Schedule.
2.4 Customer shall retain all of TCS’s and/or its licensors’ logo, trademark, copyright notice and other proprietary markings or notice on the TCS Proprietary Software or Solution. The Customer shall include on all copies of all or part of the TCS Proprietary Software or Solution including the Documentation, any proprietary markings or notices as they appeared in the TCS Proprietary Software or Solution and the Documentation.
2.5 In case the Permitted Site is a 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 Schedule. Any violation or misappropriation of TCS’ intellectual property rights in or to TCS Proprietary Software or Solution 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.
2.6 Unless otherwise agreed to in writing by TCS under the relevant SOW, Customer shall not, and shall not permit or enable any other party or person, directly or indirectly, to:
(a) make the TCS Proprietary Software or Solution or its functionality available to any party other than an Authorized User;
(b) reverse engineer, disassemble, de-compile, tamper or recreate the TCS Proprietary Software or Solution or any portion thereof;
(c) override, circumvent, bypass, delete or remove any form of protection, or usage restrictions, functionality or technical restrictions or limitations, or to enable functionality disabled by TCS or its licensor, in connection with the TCS Proprietary Software or Solution;
(d) use the TCS Proprietary Software or Solution to provide any Application Service Provider (“ASP”) or Business Processing Service Provider (“BSP”) services;
(e) sell, rent, license, sub-license, lease, lend, assign, transfer, distribute, timeshare or provide commercial hosting services with, the TCS Proprietary Software or Solution or in any other way convey, transfer or alienate the TCS Proprietary Software or Solution in favour of any person (either for commercial consideration or not and including by way of transmission) or otherwise grant any right to any third party;
(f) copy, reproduce, or create Derivative Works (except to configure the TCS Proprietary Software or Solution as part of provided features / functionality) of the TCS Proprietary Software or Solution or any portion thereof;
(g) divulge or otherwise disclose to third parties that Customer has any familiarity with or knowledge of the TCS Proprietary Software or Solution;
(h) 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 TCS Proprietary Software or Solution or any related materials, anywhere in the world.
(i) interfere with or disrupt the integrity or performance of TCS Proprietary Software or Solution or any portion thereof;
(j) use TCS Proprietary Software or Solution in any manner or for any purpose that violates or contravenes any law or regulation or the rights of others;
(k) perform or disclose any security testing, including without limitation, penetration testing, remote access testing, network discovery, vulnerability scanning, password cracking, etc., of the TCS Proprietary Software or Solution;
(l) interface or link or include, without express written permission, the TCS Proprietary Software or Solution with any other systems or applications or services other than those agreed in writing and in accordance with the Documentation provided by TCS;
(m) use the TCS Proprietary Software or Solution on any part thereof for purposes of competitive or comparative analysis, the development, provision or use of a competing software service or product or any other purpose that is to the TCS's detriment or commercial disadvantage; or
(n) issue any press release or make any other public communication, directly or indirectly, with respect to this Agreement or Your use of the TCS Proprietary Software or Solution.
2.7 The foregoing license does not authorize Customer to use the various TCS Proprietary Software or Solution 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.
2.8 Customer may transfer the TCS Proprietary Software or Solution from one Permitted Site to another at no additional license fee, and shall provide written notice to TCS within five business days of such installation. Customer shall be responsible for the cost of any migration tools, third-party database costs, third-party software or additional software required for the new Permitted Site. The TCS Proprietary Software or Solution must be promptly deleted in its entirety from the Permitted Site from where it is transferred and from each back-up copy for such Permitted Site.
2.9 Customer must ensure that Use of the TCS Proprietary Software or Solution is in compliance with all laws and regulations applicable to it and such use, including without limitation laws and regulations related to privacy, data protection, electronic communications, export and confidentiality. TCS is not responsible for compliance with any laws or regulations applicable to Customer or Customer’s industry that are not generally applicable to licensing of proprietary solutions.
2.10 TCS may, not more than once every twelve months and upon not less than ten (10) business days’ notice to Customer, audit Customer’s use of the TCS Proprietary Software or Solution for compliance with the terms and conditions in this Schedule and relevant Work Order/SOW under which the TCS Proprietary Software or Solution is used. If any audit reveals Customer to have used the TCS Proprietary Software or Solution beyond the Licensed Operations, Customer shall, in addition to paying TCS for any additional amounts due at TCS’s then-current prices, reimburse TCS for the costs of such audit. Payment of the amounts as stated above shall not release the Customer from its contractual obligations. TCS and/or its licensors expressly reserve the right to claim damages for any further prejudice.
2.11 As between TCS and Customer, Customer shall be responsible for (a) acquisition, installation and maintenance of the Target Environment; (b) complying with the applicable terms and conditions of the respective third party products used in Target Environment (c) choice, installation, use and maintenance of any third party software not forming part of the TCS Proprietary Software or Solution, which is and/or to be used in relation to the TCS Proprietary Software or Solution, and (d) making regular back-ups of Customer’s data processed via the TCS Proprietary Software or Solution.
2.12 Should the TCS Proprietary Software or Solution be used beyond the license set out in this clause 2, TCS shall be entitled to terminate the license granted hereunder in respect of such TCS Proprietary Software or Solution, without prejudice to any other rights or remedies TCS may have under this Schedule or otherwise. All rights not expressly granted herein are reserved to TCS and subject to a separate written agreement and subject to the then current terms and conditions for such use.
3. DELIVERY
3.1 TCS shall deliver the TCS Proprietary Software or Solution to Customer via electronic means only. Delivery acceptance of the TCS Proprietary Software or Solution shall be considered to be complete within five (5) days of the delivery or download thereof unless within that period the Customer makes a report to the contrary to TCS.
3.2 The Customer shall ensure that the Permitted Site meets the Target Environment requirements. Customer will be responsible for making regular back-ups of Customer’s data processed via the TCS Proprietary Software or Solution.
4. CONFIDENTIAL INFORMATION:
Confidential Information of TCS includes without limitation information concerning the TCS Proprietary Software or Solution (including the operation of or methods, techniques, underlying technology, tools or processes used in creating, developing, customizing, implementing, configuring, integrating, applying or maintaining the TCS Proprietary Software or Solution), pricing therefor, and any plans or roadmaps provided by TCS. Confidential Information of Customer includes any proprietary data owned by Customer that may be provided to TCS for purposes of providing services in relation to the TCS Proprietary Software or Solution as identified under the relevant SOW but shall exclude personal data. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer data. The providing of data or information hereunder does not replace the need for Customer to encrypt, mask, secure Customer data and maintain regular data backups or redundant data archives, including when using the TCS Proprietary Software or Solution. Notwithstanding any provision in the Schedule or Agreement to the contrary, either Party and its Affiliates will be free to use in its business and to disclose that information in non-tangible form which may be retained as unaided mental impressions by employees of a Party or its Affiliates who had access to the information in the normal course of performing their duties under the Agreement, including data processing techniques, concepts, methods, designs, ideas and know-how contained therein, including for use under Section 5.3.
5. OWNERSHIP AND PROPRIETARY RIGHTS
5.1 Customer acknowledges and agrees that TCS and / or its licensors does and will continue to own all intellectual property and intellectual property rights in or attached to the TCS Proprietary Software or Solution and Documentation, including without limitation, in or attached to any Derivative Works thereof, whether solely or jointly conceived, or even if made for the Customer and created as part of or in the course of performing or providing the services hereunder. Nothing contained herein shall be construed as a transfer, assignment or conveyance by TCS to Customer of the ownership, interest or title to the intellectual property or intellectual property rights in or attached to the TCS Proprietary Software or Solution, Documentation or any Derivative Works thereof. The Customer only receives the license explicitly granted by TCS to Customer hereunder. Customer acknowledges that any development of Derivative Works of the TCS Proprietary Software and deployment thereof may be carried out only by TCS.
5.2 Customer agrees that TCS shall have the right to collect, use, disclose, publish, or otherwise exploit without restriction or compensation to Customer, including without limitation, in future releases or further developments, any technical or meta data relating to the use of the TCS Proprietary Software or Solution, comments or feedback that Customer provides regarding the TCS Proprietary Software or Solution and reference the work carried out during this engagement with the Customer; or any and all knowledge and information of generic nature (and excluding any Customer confidential data) arising out of use of the TCS Proprietary Software or Solution (including Derivative Works thereof) by the Customer, including without limitation, architecture, frameworks, asset models, data information simulation or learning models, workflows, processes, subject level ontologies for describing materials, manufacturing and testing processes, product description, security controls, scripts, algorithms, DevOps processes, management and monitoring, APIs, data ingestion, data engineering, data manipulation techniques, workflows, orchestration, reports, artwork, visualizations and algorithms.
5.3 Nothing in the foregoing is intended to limit or restrict TCS, its Affiliates or its or their respective customers, licensees, subscribers, or partners from independently, without disclosing any Customer confidential data, creating Derivative Works to the TCS Proprietary Software or Solution or any other TCS products, solutions or services regardless of whether Customer obtains any intellectual property rights to such development.
6. THIRD PARTY SOFTWARE
6.1 Notwithstanding the license grant in Section 2, Customer acknowledges that certain components of the TCS Proprietary Software may be covered by so-called “open source” software licenses (“Open Source Software” or “OSS”). OSS and related information for the currently licensed version of the TCS Proprietary Software is mentioned in the Annex B to this Schedule. OSS and related information which may be used in creating Derivative Works or deliverables will be made available along with the TCS Proprietary Solution, Derivative Work, or any related Documentation. Open Source Software, if any, contained in this TCS Proprietary Software or Solution shall be subject to the terms and conditions of the relevant open source license agreement only. This licensing Schedule does not alter any rights or obligations, Customer may have under the relevant OSS license agreement. To the extent the terms of the licenses applicable to OSS require TCS to make an offer to provide source code for such OSS, such offer is hereby made, and may be requested by the Customer in writing. This offer to obtain a copy of the source files is valid for three years from the date Customer acquired the TCS Proprietary Software In the event of any conflict between the terms of this Agreement and those in the relevant OSS license agreement, the terms of the OSS license agreement shall prevail with respect to use of that relevant OSS.
6.2 This TCS Proprietary Software or Solution may contain third party proprietary software components. Third party software, if any, contained in this TCS Proprietary Software or Solution and the use thereof, shall be subject to the terms and conditions of the respective third party vendor(s)/licensor(s) only. The license agreement/s in respect of the embedded third party software for TCS Proprietary Software currently licensed for use under this Schedule, is/are provided under Annex C to this Schedule hereunder. Third party software which may be used in creating Derivative Works or deliverables will be made available along with the TCS Proprietary Solution, Derivative Work, or any related Documentation. Warranties, if any, shall be from the respective third party vendor(s)/licensor(s) as specified in the license agreement with the respective third parties, with the limitations/restrictions as applicable.
7. TRAINING:
In the event if the Customer requires training in respect of the TCS Proprietary Software or Solution, it shall be chargeable and shall be subject to mutual terms and conditions that would be agreed between the Parties. If TCS agrees to impart training, the training material shall be supplied only electronically.
8. INDEMNIFICATION:
8.1 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 claim or demand including from third party or expense and Losses, due to or arising out of (i) sub-sections (i) to (vii) of Section 8.1 or any matters connected therewith, (ii) use by TCS of any Customer provided material, software, data or information; (iii) Customer’s use of the TCS Proprietary Software or Solution in a manner contrary to the provisions of this Schedule or any matters connected therewith.
8.2 A Party shall not be entitled to seek any indemnification from the other Party unless such party provides the other Party with
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;
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
- 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. WARRANTY DISCLAIMER & LIMITATION OF LIABILITY:
9.1 Customer acknowledges that the TCS Proprietary Software or Solution has not been developed to meet the Customer’s specific requirements and it is responsible for ensuring that the TCS TCS Proprietary Software or Solution together with the Derivative Works and deliverables specified in the relevant Statement of Work satisfies or meets its requirements. When using the TCS Proprietary Software or Solution, the Customer shall observe the guidelines set down in this Schedule, the relevant SOW and the pertinent Documentation.
9.2 Except for the warranties contained in this Annexure, neither Party makes any representations or warranties, express or implied, or statutory, including without limitation any implied warranties of merchantability, fitness for a particular purpose, system integration, accuracy, reliability (including for providing warnings of all potential hazards), error-free, un-interruption, support correction or repair (unless otherwise agreed) or otherwise that the TCS Proprietary Software or Solution or Derivative Works provided hereunder will operate 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 program error does not result in the occurrence of other program errors; all other representations and warranties are hereby disclaimed. Customer acknowledges and agrees that the TCS Proprietary Software or Solution is not a substitute or alternative for measures or advice or alerts and does not replace any act or functions which Customer needs to put in place in accordance with laws, regulations and policies applicable to it and its activities or otherwise should be performed or are recommend. Customer acknowledges and agrees that usage, environment and other conditions can adversely affect TCS Proprietary Software or Solution detection, analysis, transmission and response capabilities and that the TCS Proprietary Software or Solution cannot and/or are not to be used in all environmental or work conditions. The TCS Proprietary Software or Solution are not fault-tolerant and are not designed or intended to be used in high-risk or hazardous environments or any application where the failure or malfunction of any TCS Proprietary Software or Solution can reasonably be expected to result in death, personal injury, severe property damage or severe environmental harm (“High-Risk Activities”). TCS makes no warranties or assurances, express or implied, regarding use of the TCS Proprietary Software or Solution for High-Risk Activities. Customer should not use the TCS Proprietary Software or Solution for High-Risk Activities and any use of the TCS Proprietary Software or Solution by Customer for a High Risk Activity is at Customer’s own risk; TCS, its Affiliates and suppliers / licensors shall not be liable to Customer or any third party in any way for use of the TCS Proprietary Software or Solution in a High Risk Activity.
9.3 Except as set forth in clauses 9.5, neither Party shall be liable to the other for any indirect, incidental, consequential, exemplary, punitive, special or cover damages, or loss of profit, revenue, data, goodwill or investments, whether in contract, tort or other theories of law, even if advised of the possibility of such liabilities.
9.4 Except, as set forth in clauses 9.5 and for breach of confidentiality obligations, the aggregate liability of each Party for all direct damages arising from or relating to this Schedule (whether in contract, tort or any other theories of law) shall not exceed the total amount of License Fees for the relevant TCS Proprietary Software or Solution paid by the Customer to TCS 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 SOW/Addendum shall not be subject to the aforesaid liability cap amount.
9.5 The limitation/exclusion on any Party’s liability as set forth in Section 9.3 and Section 9.4 of this Annexure shall not apply to liability for damages,
Resulting from the wilful misconduct of that Party, its affiliates, employees or agents, or anyone for whom it is in law responsible;
Obligations under Section 8 (Indemnity); and
Due to infringement or misappropriation of intellectual property rights by Customer arising from use of the TCS Proprietary Software or Solution by Customer, its Affiliates or their respective Authorized Users in a manner not licensed under this Schedule.
Breach of confidentiality obligations
.
10. TERMINATION:
10.1 The term of this license granted hereunder shall commence on the Start Date and shall continue to remain in effect until the End Date mentioned in the Annex A to this Schedule, unless this terminated in accordance with the provisions herein.
10.2 The license shall terminate in case the Customer decide to discontinue using the TCS Proprietary Software or Solution or is no longer required in the provision of Services under the relevant SOW or the relevant SOW is terminated, whichever is earlier. TCS may terminate the license granted hereunder under Section 2.12 of this Schedule; or in the event of the direct or indirect assumption o
