Software As A Service Terms and Conditions
TCS SOFTWARE AS A SERVICE TERMS AND CONDITIONS
These SOFTWARE AS A SERVICE TERMS AND CONDITIONS (the “Agreement”) apply to the SaaS Services ordered under the Order Form that references these terms and conditions. This Agreement is entered into by and between the Customer identified in the Order Form (“Customer”) and Tata Consultancy Services Limited or such Affiliate as identified in the Order Form (“TCS”).
By clicking and/or checking an “I Agree” or any similar button or check box presented with this Agreement at the time of requesting Use, and/or by activating the Software with any associated access key/credentials, or using, as applicable, all or any part of the Software, you are acknowledging that you agree to the terms of this Agreement.
You represent and warrant that you are agreeing to this Agreement on behalf of your organization and that you have read and understand this Agreement, you have legal authority to bind the Customer to the terms of this Agreement and you are agreeing to this Agreement on behalf of the Customer.
If you or Customer does not agree with any of the terms and conditions of this Agreement, you, Customer and Authorized Users must not download, install, activate, Use or access the SaaS Services and/or the Software in any way, or check and/or click “I Agree” or any similar box or button associated with this Agreement during the software registration, downloading, installation, activation, use or access process. You, Customer and any Authorized Users must immediately stop Use of the Software and any related access keys/credentials.
Capitalized terms used in this Agreement shall have the following meanings:
“Affiliate” means, 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.
“Authorized Users” means the individuals authorized by Customer to Use the SaaS Services, including accessing to Software Store, on behalf of Customer.
“Customer Material” means the software, data, information, telecommunication services and any environment as specified in the Documentation, and provided by Customer to Use the SaaS Services.
“Documentation” means the then-current user manuals provided by TCS in connection with the SaaS Services and available at www.digitate.com and/or on the Software Store.
“Fees” shall mean the SaaS Services fees as set out in the relevant Order Form.
“Hosting Provider” means the third party cloud services provider that TCS uses to host the Software to provide the SaaS Services as referred to in the Support Policy.
“Intellectual Property Rights” means any and all intellectual property rights of any kind, including without limitation, copyrights, patents, trademarks, design rights and trade secrets.
“Order Form” shall mean each order form for SaaS Services and Support referencing the Agreement and executed by Customer and TCS, or placed by Partner on behalf of Customer and accepted by TCS or an Affiliate mentioned on Order Form, that specifies the type/quantity of SaaS Services and Support to be provided, the Scope, the associated Fees and the Term as well as any additional terms and conditions that the parties may agree.
“Partner” means a reseller or distributor that is under contract with TCS or its Affiliate and is authorized via such contract to resell the SaaS Services to Customer.
“Party or party” means Customer or TCS, “Parties or parties” mean Customer and TCS
“Proxy” means the software and scripts provided by TCS to Customer for download, installation and/or execution in Customer’s environment to assist Customer to connect to and Use the SaaS Services, including any improvements, updates and modifications thereto provided by TCS from time to time.
“SaaS” means software as a service.
“SaaS Services” means the provision of access to the Software as a service and its administration management, monitoring and any other related services except Support, as described in the relevant Order Form.
“Scope” means the scope of the SaaS Services as described in the relevant Order Form.
“Security Policy” means the TCS Security Policy at https://digitate.com/security-policy/, which policy may be updated by TCS from time to time upon notice to Customer.
“Software” means the object code version of the software being made available by TCS as SaaS, as more particularly described in the relevant Order Form and any versions, modules, components, adapters, interfaces, improvements, updates and modifications thereto provided by TCS from time to time.
“Software Store” means the online Software store made available by TCS or its agents to download the Proxy and/or the Documentation.
“Support” means the type/quantity of support for SaaS Services as specified in the applicable Order Form and as more particularly described in the Support Policy.
“Support Policy” means the TCS Support Policy at https://digitate.com/support-policy/, which policy may be updated by TCS from time to time upon notice to Customer.
“Term” has the meaning set out in Section 11.1.
“Use” means: (i) with respect to the SaaS Services, Customer’s access to and use of the Software deployed as SaaS; (ii) with respect to the Proxy, the right to make a reasonable number of copies, install and use the Proxy in the Customer environment in object code format only for use with SaaS Services; (iii) with respect to the Documentation, the right to use and make a reasonable number of copies; and (iv) to the extent applicable, use shall also include the act of configuring the Software and Proxy, transmitting and processing of data in connection with the business of the Customer, all in accordance with the terms of this Agreement.
2. SAAS SERVICES, PROXY LICENSE AND SUPPORT
2.1 Subject to Customer’s timely payment of the Fees set forth in the applicable Order Form and compliance with the terms of this Agreement, TCS shall provide the SaaS Services, Support, Proxy and Documentation to the Customer during the Term, and Customer shall receive a limited, revocable, non-exclusive, non-transferable, non-sub-licensable, worldwide (subject to the export controls in Section 12.9): (i) right to Use the SaaS Services within the Scope and only through the Proxy; and (ii) right to Use the Proxy and Documentation only as required to Use the SaaS Services.
2.2 TCS may enhance or modify the SaaS Services or Proxy, provided it does not materially reduce their functionality.
2.3 In the event the Order Form indicates subscription to an evaluation type, Customer’s rights and the SaaS Services including any Support under this Agreement will expire automatically at the end of the evaluation Term (except as otherwise specified in the Order Form), and the following will apply: (a) Customer shall not Use the SaaS Services or any Proxy on live data or in a production environment; and (b) Sections 8.1 (TCS Indemnity), 9.1 (TCS Warranty), TCS’s obligations under Section 11.5 (retention of data), Section 12.10 (Publicity) will not apply with respect to the evaluation Term.
3. ORDERING, FEES AND TAXES
3.1 Where Customer signs Order Form directly with TCS, TCS will invoice the Customer and Customer shall pay TCS the Fees within thirty (30) days after the date of invoice. If the invoice remains unpaid after such thirty (30) day period, TCS shall be entitled to payment of the unpaid Fees with interest at the rate of 1.5% per month, or the maximum rate permitted by law, whichever is lower, calculated from the payment due date until the recovery is made in full with interest and/or suspend the SaaS Services.
3.2 If Customer is ordering through a Partner, the Partner will invoice Customer and Customer shall pay the Partner the fees based on the Partner’s invoicing and payment terms as per any agreement between Customer and Partner. Customer agrees to pay all applicable taxes on its transaction with such Partner on purchase of the SaaS Services and Support.
3.3 If Customer exceeds the Scope of Use, without limiting any other rights or remedies TCS may have at law or in equity, the overage will be treated as an order for excess Use and Customer shall be liable to pay TCS for the overage immediately on demand at the then current TCS price list for the remainder of the Term effective from the date of overage along with interest thereon from the date of such overage.
3.4 Fees are exclusive of any applicable taxes and duties and are non-cancelable and non-refundable, except where prohibited by law. Customer located outside India undertakes holding of valid registration under local VAT/GST or similar taxes applicable to import of SaaS Services.
3.5 Customer shall be solely liable to pay the applicable taxes to the local tax jurisdiction in the prescribed time limit. Customer agrees to defend, indemnify and hold harmless TCS and its Affiliates for any claims, causes of action, costs (including, without limitation, reasonable attorneys’ fees) and any other liabilities of any nature whatsoever for failure to withhold and pay such taxes or discharge all taxes on its transaction under this Agreement or its transaction with a Partner when ordering through a Partner.
4. CUSTOMER’S RESPONSIBILITIES AND CONSENTS
4.1 Customer acknowledges that Customer is responsible for:
1.a) the Customer Material, including without limitation accuracy, quality, legality, backup and its use; and TCS will not assume any risk or liability arising out of or related to, or provide any warranties, support services or indemnities for, Customer Material.
1.b) acquisition, installation and maintenance of the Customer environment and applications;
1.c) its Authorized Users and any breach or non-compliance of this Agreement by any Authorized User shall be deemed to be a breach or non-compliance by Customer;
1.d) all activities, access, use and transmissions that occur through Customer’s or its Authorized Users’ accounts, even if without Customer’s knowledge or if done by third parties;
1.e) administration and safeguarding of access to, and related credentials for, the Authorized Users of the SaaS Services, Software Store, including accounts, passwords or user names;
1.f) complying with the applicable terms and conditions of the respective third party products used in Customer environment;
1.g) choice, installation, use and maintenance of any third party software not forming part of the SaaS Services or Proxy, which is and/or to be used in connection with the SaaS Services or Proxy;
1.h) making regular back-ups of Customer data to be processed via the Software, and
1.i) complying with any laws or regulations applicable to Customer or Customer’s industry that are generally not applicable to SaaS service providers. TCS does not determine whether Customer data includes information subject to any specific law or regulation. Customer is responsible for determining whether the Software and/or the SaaS Service is appropriate for its purposes, storage and processing of information subject to any specific law or regulation or any standard. TCS, its Affiliates, partners or service providers are not responsible for compliance with any laws or regulations applicable to Customer or Customer’s industry.
4.2 Customer shall not, and shall not permit any person, directly or indirectly to:
1.a) gain or attempt to gain unauthorized access to, intercept, interfere with, expropriate or do any harm to, any account, workspace, software, data, files, computer systems or environments accessible via the SaaS Services, including without limitation monitoring, crawling, storing or transmitting any malicious code, malware, viruses, worms, time bombs, spyware, adware, bots, or Trojan horses, or interfering with other customers receiving SaaS Services or with the security of the SaaS Services;
1.b) use the SaaS Services other than through the Proxy;
1.c) recreate, copy, reproduce, modify, reformat, create derivative works of, the Software, the Proxy or any portions thereof; reverse engineer, disassemble, de-compile the Software, or any portions thereof, to attempt to discover the source code or underlying software or structures of Software, except as legally required for interoperability purposes and where such information is requested in writing from and not made available by TCS
1.d) circumvent, bypass, delete or remove any form of protection, security, passwords, controls, functional or technical restrictions or limitations, or enable functionality disabled by TCS, in connection with the SaaS Services or Proxy;
1.e) rent, lease, lend, license to a third party, sublicense, distribute, publish, display, post, transmit, timeshare, telecommunicate, host, frame, sell, resell, reproduce, assign, transfer, or in any way commercially exploit the SaaS Services or Proxy or any Intellectual Property Rights therein;
1.f) access and use or make available the SaaS Services or Proxy for any purpose other than its own internal business purposes, including without limitation as a service provider to third parties or as a managed or network provisioned service;
1.g) perform any security testing that attacks or could disrupt the SaaS Services or Proxy, or disclose the results of any security testing, without TCS’ prior written consent;
1.h) access or use the SaaS Services, Support, Software, Proxy or Documentation for purposes of competitive or comparative analysis or the development, provision or use of a competing software service or product, or any other purpose that is to the detriment or commercial disadvantage of TCS;
1.i) file or seek any Intellectual Property Rights anywhere in the world related to the Software, Proxy or SaaS Services;
1.j) interface, link or combine any open source software with the Software or Proxy in such a way that could cause or could be interpreted or asserted to cause the Software or Proxy to become subject to any encumbrance or terms and conditions of any open source license;
1.k) remove, alter or otherwise render illegible any of TCS’s logo, trademark, copyright notice or other proprietary or confidentiality markings that may be placed on the Software, Proxy or components thereof or Documentation provided to Customer hereunder.
4.3 Customer agrees to maintain and use systems and procedures that allow Customer to accurately and completely track, document, and report entitlements and Use of SaaS Services and Proxy and provide information and attestation relating to its Use of SaaS Services and the Proxy, as required by TCS to verify Customer’s compliance with the Agreement. Customer shall maintain a written, up to date list of current Authorized Users and any Scope metric as agreed under the Order Form and provide such list to TCS within five (5) business days of the written request at any time by TCS, in order to verify compliance.
4.4 Customer consents to the collection of billing account information about Customer on the Order Form and lawful use, disclosure, processing and transfer of such information to and by TCS, its Affiliates, Partners and their respective third party service providers, solely for the purposes of processing Customer’s order and/or payments and providing the SaaS Services, Support, Proxy and Documentation. Customer also consents to TCS and/or its Affiliates’ administrative, support and investigative personnel, crawling and/or monitoring, collecting, processing and using SaaS Services usage technical data related to Customer’s account for billing and administrative purposes, to provide Support and investigate fraud, abuse or any violations of the Agreement.
4.5 Customer also consents to TCS paying fees to its reseller Affiliates, or TCS or its Affiliates paying to the Partners the fees for reselling the SaaS Services and Support. The fees are for pre-sales support and may in cases also include post-sales support. The fees are based on, and may increase with, the size of Customer’s order.
4.6 Customer acknowledges and agrees that Customer data that TCS processes on Customer’s behalf may be transferred to, and stored and processed in, the United States or any other country in which TCS or its Affiliates or subcontractors maintain facilities. Customer appoints TCS to perform any such transfer of Customer data to any such country to store and process Customer data in order to provide the SaaS Services.
5. CONFIDENTIALITY AND PRIVACY
5.1 Customer acknowledges, and shall notify all its Authorized Users, that as between the parties, all information concerning the SaaS Services, Support, the Software and/or the Proxy, structure, sequence, organization, operation of, methods and processes, GUIs, APIs, underlying technology, blocks, scripts, code, tools, pricing, files generated from the Software and any content (other than Customer Material), or any other materials or information provided to the Customer via the SaaS Services, are the confidential and proprietary information of TCS. TCS acknowledges that as between the parties, Customer Material is the confidential and/or the proprietary information of Customer. Each party agrees, and shall require its personnel and Authorized Users, to not disclose or disseminate the other party’s confidential and proprietary information to any other person other than those persons who have a need to know for the purposes of the SaaS Services in accordance this Agreement. In addition, each party: (i) shall take all such steps to prevent unauthorized access to the other party’s confidential information, as it takes to protect its own confidential or proprietary information of a similar nature, which steps shall in no event be less than a reasonable standard of care, and (ii) shall require all persons and entities who are provided access to the other party’s confidential information, to be bound by confidentiality or non-disclosure agreements or duties substantially similar to those set forth in this Section 5.1. The provisions of this Section respecting confidential information of the disclosing party shall not apply to the extent, that such confidential information is: (a) already known to the receiving party free of any restriction at the time it is obtained from the disclosing party; (b) subsequently learned from an independent third party free of any restriction and without breach of this provision; (c) is or becomes publicly available through no wrongful act of the receiving party or any third party; (d) is independently developed by the receiving party without reference to or use of any confidential information of the disclosing Party; or (e) is required to be disclosed pursuant to an applicable law, rule, regulation, government requirement or court order, or the rules of any stock exchange. Upon the disclosing party’s written request at any time, or following the completion or termination of this Agreement, the receiving party shall promptly return to the disclosing party, or destroy, all confidential information of the disclosing party provided under or in connection with this Agreement, including all copies, portions and summaries thereof and confirm the same in writing to disclosing party.
6. OWNERSHIP AND PROPRIETARY RIGHTS
6.1 TCS, its licensors or subcontractors, own and retain all Intellectual Property Rights in or to the Software, the Proxy, the Documentation, the SaaS Services and any components thereof, including without limitation the underlying technology, know-how, architecture, format, structure, sequence, organization, processes, dashboards, technical data relating to use of the Software or the SaaS Services, operational data, metadata, functions, algorithms and all improvements, enhancements, modifications and derivative works. Customer acknowledges and 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 data (excluding Customer data) relating to the use of the Software and/or SaaS Services.
6.2 Customer retains all Intellectual Property Rights in or to the Customer Material. Customer hereby grants to TCS, upon creation thereof, at no additional charge, a non-exclusive, irrevocable, worldwide (subject to the export controls in Section 12.9), fully paid up, royalty free license to use and copy the Customer data provided as part of Customer Material for the provisioning of the SaaS Services; and exercise any and all Intellectual Property Rights in and to any comments, ideas and feedback that Customer or its Authorized Users provide in relation to the SaaS Services and/or the Software or Proxy.
7. THIRD PARTY SOFTWARE
7.1 The Software may contain third party software (including without limitation open source software or “OSS”). Notwithstanding the Use grant in Section 2 and Section 6.2, Customer agrees that the third party software and use thereof shall be governed by terms as set out in the Notices file for the version in use located at https://digitate.com/oss-policy/. Customer agrees to comply with, and shall ensure its Authorized Users comply with, any such third party software terms and conditions. In the event of any conflict between the terms of this Agreement and those in the relevant license agreement applicable to such third party software components, the terms of the applicable license agreement shall prevail with respect to use of that relevant third party software component. To the extent, the terms of the licenses applicable to any OSS require licensor to make an offer to provide source code or related information in connection with the Software, such offer is hereby made, and may be requested in writing by the Customer and accessed from the information provided in the above mentioned link.
8.1 Subject to Section 8.4, TCS shall defend, or at its option settle, any third party (other than Customer Affiliate) claim against Customer that the SaaS Services (excluding any OSS or third party software components) and Documentation, when Used in accordance with this Agreement and the applicable Order Form, infringe the copyright or registered patent rights of such third party (“Infringement Claim”), and pay any settlement amounts or judgments finally awarded therefor; provided that TCS shall have no obligations to the Customer under this Section 8.1 or Section 8.2 below to the extent resulting from: (a) Customer’s or any Authorized User’s breach of this Agreement; (b) any Customer Material, or any third party content, products, services or software, or combination with any of the foregoing; (c) Customer’s failure to implement any modified Proxy provided by TCS, the use of which would have prevented any such Infringement Claim; (e) Customer’s continued use of the, Proxy or other allegedly infringing activity after receiving notice of the alleged infringement; or (f) any version of the Proxy and/or the SaaS Services which is no longer supported by TCS.
8.2 Subject to the foregoing provisions, in the event that any Infringement Claim is made, or in TCS’ judgment is likely to be made, then TCS may, at its sole discretion, modify and/or replace the infringing part of the SaaS Services or Documentation so that it is no longer infringing. If TCS determines that the foregoing option is not reasonably available, TCS may terminate the applicable Order Form or part thereof upon written notice to Customer and refund to Customer or the Partner through whom Customer ordered the SaaS Services, the portion of the pre-paid Fees covering the unexpired Term for such SaaS Service. If Customer has ordered the SaaS Services and paid the fee through a Partner, Customer agrees that Customer will have to seek refund, if any, through the Partner, through which Customer ordered the SaaS Services. The provisions of Sections 8.1 and 8.2 state TCS’s entire liability and Customer’s sole and exclusive remedy with respect to any Infringement Claim.
8.3 Customer shall defend, indemnify and hold TCS and its Affiliates, licensors, subcontractors and their respective directors, officers, agents, employees, assignees and licensees (the “Indemnified Parties”) harmless from any and all damages, claims, demands, actions, penalties and expenses, including reasonable legal fees, relating to or arising from sub-sections (a) to (f) of Section 8.1 or any matters connected therewith.
8.4 Neither Party (“Indemnitee”) shall be entitled to seek any indemnification from the other party (“Indemnitor”) under this Section 8 unless Indemnitee provides Indemnitor with: (a) prompt written notice of any claim or threat thereof, and any subsequent litigation updates, for which Indemnitee is seeking or may seek indemnification hereunder and gives the Indemnitor the right to have full and exclusive control of the defence and settlement of the claim and any subsequent appeal; (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) reasonable cooperation and information in the defense of such claim and in any negotiations or settlements of such claim, including any statements to third parties regarding the claim. The Indemnitee may participate in any such claim or suit at its own expense.
9. WARRANTIES AND DISCLAIMERS
9.1 TCS warrants that during an applicable Term the SaaS Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Customer’s sole and exclusive remedies are for TCS to modify the SaaS Services to conform the Documentation.
9.2 Customer represents and warrants that all account information it provides is accurate and up-to-date.
9.3 Each Party represents, warrants and covenants to the other that: (a) it is duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or formation; (b) it has the full right and authority to enter into and that this Agreement constitutes a legal, valid and binding obligation; (c) its execution, delivery and performance of this Agreement does not and will not conflict with, or constitute a breach or default under, its charter of organization, or any contract or other instrument to which it is a party; and (d) it shall abide by all laws applicable to it in relation to the SaaS Services; provided that Customer must ensure it has the right to access all features of the SaaS Services in its jurisdiction.
9.4 EXCEPT FOR THE WARRANTIES IN THIS SECTION, TCS MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE SAAS SERVICES, THE DOCUMENTATION, THE SOFTWARE, THE PROXY, ANY THIRD PARTY SOFTWARE, THE SAAS SERVICES ENVIRONMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, ANY LEGAL OR REGULATORY COMPLIANCE REQUIREMENTS, QUIET ENJOYMENT, SYSTEM INTEGRATION, CONFIGURATION, ACCURACY, RELIABILITY, SECURITY, UNINTERRUPTED SAAS SERVICES, ERROR FREE OR VIRUS FREE OPERATION, OR THAT THE SAAS SERVICES OR PROXY WILL MEET CUSTOMER’S BUSINESS REQUIREMENTS OR OPERATE WITH CUSTOMER’S EXISTING SYSTEMS OR OTHERWISE ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OR TRADE. ALL SUCH OTHER WARRANTIES ARE HEREBY DISCLAIMED BY TCS. NO ADVICE, INFORMATION OR SUPPORT OBTAINED BY THE CUSTOMER FROM TCS, ITS AFFILIATES OR FROM ANY PARTNER OR ANY THIRD PARTY OR THROUGH THE SAAS SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.
9.5 Customer and Authorized Users further acknowledge that the Software, Proxy and SaaS Services are not intended or suitable for use in situations or environments 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 and TCS disclaims any warranties on the Software, Proxy and SaaS Services in such situations or environments.
9.6 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.
10. LIMITATION OF LIABILITY
10.1 NEITHER PARTY NOR ITS AFFILIATES SHALL BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, COVER, EXEMPLARY OR PUNITIVE DAMAGES, OR FOR LOSS OF REVENUE, LOST INVESTMENT OR ANTICIPATED SAVINGS, LOSS OR CORRUPTION OR INTERRUPTION OF OR DAMAGE TO DATA, LOST PROFITS, REPUTATION, BUSINESS INTERRUPTION, GOODWILL, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF THE REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.
10.2 TCS, its Affiliates and their respective directors, officers, employees, agents or subcontractors, shall not be liable or responsible for: (a) any delay or failure of any obligations, if and to the extent Customer or its Authorized Users have failed to comply with the terms of this Agreement; (b) any loss, damage or liability arising from or to Customer Material; (c) any security incidents arising from Customer Material or Customer’s lack of reasonable security controls or negligence; (d) any delays, delivery failures, damages or losses resulting from materials, software, data, systems, networks, facilities, products or services not furnished or provided by TCS; (e) the deletion, correction, destruction, damage, loss, corruption, failure to store or recovery of any Customer data arising out acts or omissions of Customer or its Authorized Users. Customer understands that the Partners are independent of TCS and are not TCS’ agents. TCS is not liable for, nor bound by any acts of any such Partner.
10.3 THE TOTAL CUMULATIVE LIABILITY OF EITHER PARTY, ITS AFFILIATES AND THEIR RESPECTIVE DIRECTORS, OFFICERS AND EMPLOYEES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SAAS SERVICES SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID OR PAYABLE TO TCS BY THE CUSTOMER FOR THE APPLICABLE SAAS SERVICE IN A RELEVANT ORDER FORM THAT GIVES RISE TO SUCH LIABILITY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST INCIDENT OUT OF WHICH SUCH LIABILITY AROSE. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
10.4 The limitations and disclaimers under this Section 10 shall not apply to: (a) willful misconduct (b) Customer’s failure to pay the Fees owing under this Agreement; (c) Customer’s liability for breach of the restrictions in respect of the SaaS Services, or the licenses in this Agreement for the Documentation or Proxy; (c) breach of confidentiality obligations (except any breach of personal data or breach of privacy or data protection laws by TCS which are subject to a liability cap of the Fees paid or payable to TCS by the Customer for the applicable SaaS Service in a relevant Order Form that gives rise to such liability during the twenty four (24) month period immediately preceding the first incident out of which such liability arose ); (d) liability under the indemnities in Section 8; or (e) infringement or misappropriation by Customer or its Authorized Users of Intellectual Property Rights in the SaaS Services, the Software, the Documentation or the Proxy; or (f) breach by Customer of Section 9.2 or 9.5.
10.5 The disclaimers and limitations of liability under this Agreement will apply regardless of the cause of action, whether in contract, tort, infringement or other theories of liability. Some jurisdictions do not allow the exclusion or limitation of certain damages. Nothing in this Section 10 limits or excludes any liability that cannot be limited or excluded under applicable law. Customer acknowledges that the commercial terms set forth in this Agreement reflect the allocation of risk set forth in this Agreement and that TCS would not enter into this Agreement without these limitations on its liability.
11. TERM AND TERMINATION
11.1 This Agreement shall commence on the Start Date as set out in the first Order Form and continue until expiry of all Order Forms, unless terminated earlier in accordance with the provisions herein (the “Term”).
11.2 TCS may suspend or otherwise deny Customer’s or any Authorized User’s Use of the SaaS Services without incurring any resulting obligation or liability: (a) if TCS believes, in its good faith and reasonable discretion, that Customer or any Authorized User has failed to comply with any term of this Agreement; (b) violation by Customer of Section 4.2; (c) until such time as all Fees due to it under this Agreement have been paid by Customer; or (d) to comply with applicable laws and regulations or if TCS receives a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires TCS to do so; or (e) Use or non-Use of Software and/or SaaS Service by Customer, or Customer data, which poses an imminent threat to the Software and/or the SaaS Services or third party service provider systems or other TCS customers; or (f) Customer has ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Customer assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding. Any such suspension by TCS shall not be treated as breach by it of the provisions of this Agreement. TCS may impose a reconnection fee in the event Customer is suspended due to its default and thereafter requests access to the SaaS Services. Customer remains responsible for all Fees during the period of suspension and any reconnection charges; however, Customer data will not be erased, except as specified elsewhere in this Agreement. TCS will endeavor to provide sufficient advance notice of suspension and opportunity to resolve any breach wherever practical.
11.3 Either party may terminate this Agreement or the applicable Order Form by a written notice to the other party: (a) in the event of a material breach by the other party, immediately if the breach is not curable, or by a written notice of thirty (30) days, if the breach is curable and is not cured within the said notice period, except that TCS has the right to immediately suspend or terminate Customer’s use of the SaaS Services if Customer is in breach of Section 4; (b) immediately in the event of any proceedings in bankruptcy, insolvency or winding up filed by or against the other party or for the appointment of an assignee or equivalent for the benefit of creditors or of a receiver or of any similar proceedings; or (c) if Customer fails to pay the Fees due and fails to remedy that breach or non-payment within five days after receipt of written notice from TCS demanding that Customer do so. Customer may terminate this Agreement if TCS changes the terms of this Agreement in accordance with 12.7. Any termination shall not relieve Customer of paying outstanding Fees owing.
11.4 TCS may also terminate this Agreement immediately upon notice to Customer (a) for cause, if any act or omission by Customer or any Authorized User results in a suspension described in Section 11.2 is either not curable or where curable, is not cured within a period of seven (7) days from date of notice to Customer, (b) if TCS’ relationship with a third party partner who provides software or other technology TCS uses to provide the Software or SaaS Services expires, terminates, or requires TCS to change the way TCS provides the Software or other technology as part of the SaaS Services, (c) if TCS believes providing the SaaS Services could create a substantial economic or technical burden or material legal or security risk for TCS, (d) in order to comply with the law or requests of governmental entities, or (e) if TCS determines use of the SaaS Services by Customer or any Authorized User or TCS’ provision of any of the SaaS Services to Customer or any Authorized User is impractical, prohibited, or unfeasible for any legal or regulatory reason.
11.5 This Section 11 does not limit either party’s other rights or remedies under this Agreement, at law or in equity. Upon the termination or expiry of this Agreement or the applicable Order Form, the access to and availability of the SaaS Services will immediately cease and Customer shall cease using the Software and the SaaS Services and return or delete the Proxy. No data access or retrieval services are available post expiry or termination of this Agreement or applicable Order Form. Customer is advised to take regular back-ups of Customer data on the SaaS Services before such expiry or termination. Thirty (30) days after the termination or expiry of this Agreement or the applicable Order Form, TCS may delete the entire instance of the applicable SaaS Services and delete any production copies of Customer Material in its possession.
12.1 Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations under this Agreement to the extent such failure or delay is caused by any reason beyond its reasonable control, such as fire, flood, earthquake, elements of nature or acts of God, systemic electrical, telecommunications, third party services, Hosting Provider or utility failures, strikes, labour disputes or other industrial disturbances acts of state, strikes, acts of war, terrorism, riots, civil disorders, rebellions or revolutions; quarantines, embargoes and other similar governmental action (a “Force Majeure Event”). The affected party will immediately notify the other by reasonable detail of the Force Majeure Event. If a Force Majeure Event continues for more than thirty (30) days, either party may, by a written notice to the other party, terminate this Agreement, without liability.
12.2 Headings and Conflict. Headings in this Agreement are for reference purpose only and shall not affect the validity or interpretation of the Agreement. In the event of any inconsistencies or conflicts between the terms of the main body of this Agreement and the terms of any Order Form or other documents referenced in this Agreement, the following shall be the order of precedence: 1. The Order Form; 2. The main body of this Agreement; 3. The policies referred to in this Agreement; 4. The Documentation. The parties agree that the English version of this Agreement will govern in the event of a conflict between it and any version translated into another language.
12.3 Independent Contractors. Each party to this Agreement is an independent contracting entity and shall not be deemed an agent or partner of the other. TCS may subcontract the performance of the SaaS Service to third parties.
12.4 Governing Law and Dispute Resolution. This Agreement shall be interpreted and governed by the law of the jurisdiction where TCS or TCS branch office or a TCS Affiliate which accepts the Order Form is organized. All disputes or differences whatsoever arising between the parties, out of or in relation to the construction, meaning and operation or effect of this Agreement or breach thereof, shall be exclusively and finally settled under the Rules of Arbitration of the International Chamber of Commerce (ICC) by one or more arbitrators appointed in accordance with the said Rules for the time being inforce, which Rules are deemed to be incorporated by reference in this Section 12.4. The seat of the arbitration shall be the city where TCS or TCS branch office or a TCS Affiliate which accepts the 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 TCS or a TCS Affiliate, which accepts the Order Form that gives rise to dispute, is, organized and ICC has a seat. The language of the arbitration shall be English. The arbitrator will be a third party mutually agreed to by the Parties, or if the Parties cannot agree, each party will select one arbitrator and the arbitrators shall select a third arbitrator for a panel of three (3). Each arbitrator shall have significant experience in software as a service. All matters relating to the arbitration will be kept confidential to the full extent permitted by applicable law and no individual will be appointed as an arbitrator unless he or she agrees in writing to be bound by this dispute resolution provision. 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 or its Affiliates, licensors or subcontractors, related to this Agreement or the SaaS Services. The Uniform Computer Information Transactions Act or the United Nations Convention on the International Sale of Goods or similar local legislation, as amended or replaced from time to time, shall not apply to this Agreement or the SaaS Services.
12.5 Notices. All notices provided for or permitted under this Agreement shall be in writing and: (i) delivered personally and effective upon delivery with written verification of receipt, (ii) sent by commercial courier and effective with written verification of receipt, or (iii) sent by certified or registered mail, postage prepaid and effective within seven (7) days of delivery, to the party to be notified, at the address for such party set forth in the Order Form, or at such other address of such party notified in writing by such party. 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.
12.6 Entire Agreement and Severability. Any terms that may appear on a Customer’s purchase order (including without limitation pre-printed terms), or as part of Customer’s order with a Partner, that conflict or are inconsistent with the terms and conditions of this Agreement, shall not apply to the SaaS Services, the Support, the Software, the Proxy or the rights of Use referred to hereunder and shall be deemed null and void in respect of the subject matter of this Agreement.
This Agreement, together with the policies, Documentation and the Order Forms referenced herein, sets forth the entire understanding of the parties concerning the SaaS Services and related licenses and supersedes all prior or simultaneous communications, proposals, agreements and understandings between the parties (whether written or oral) regarding this subject matter. If any provision of this Agreement be held invalid, illegal or unenforceable by the arbitration panel or a competent court, such provision shall be modified to the extent necessary to make it valid and enforceable whilst preserving the intent of the parties and all other provisions of this Agreement shall remain fully valid and enforceable unless otherwise agreed between the parties. If such modification is not possible, the invalid, illegal or unenforceable portion will be severed from this Agreement but the remainder of the Agreement will remain in full force and effect. No provision of this Agreement nor any breach thereof will be considered waived by either party, unless such waiver is in writing signed on behalf of that party and no such waiver will constitute a waiver of, or excuse for any other or subsequent breach of this Agreement.
12.7 Amendment. This Agreement (including any policies) may be amended by TCS any time in TCS’ sole discretion by posting a revised version on www.digitate.com and/or the Software Store. Any amendment will be deemed accepted by the Customer and will apply to this Agreement immediately upon continued access to the SaaS Services by Customer. It is Customer’s responsibility to check www.digitate.com and the Software Store regularly for amendments to this Agreement. In the event an amendment causes a material degradation of the SaaS Services, or materially reduces Customer’s rights or increases its obligations, Customer will have the right, as its sole and exclusive remedy, by written notice no later than 30 days after the amendment takes effect, to terminate this Agreement and Customer will stop Using the SaaS Services and return or delete the Proxy and confirm the same in writing to TCS.
12.8 Survival. The provisions of this Agreement necessary to determine, enforce or interpret the rights and obligations of the Parties shall survive any expiration or termination of this Agreement, including without limitation, the provisions of Sections 1 (Definitions), 4.2 (Customer Responsibilities), 5 (Confidentiality and Privacy), 6 (Ownership and Proprietary Rights), 8 (Indemnification), 9 (Warranties and Disclaimers), 10 (Limitation of Liability) and 12 (Miscellaneous) of this Agreement shall survive the termination or expiry of this Agreement.
12.9 Export Compliance. SaaS Services are subject to local and extraterritorial export controls laws and regulations. Customer shall not access the SaaS Services from any sanctioned countries, or provide access to the SaaS Services to any sanctioned individuals, or export or re-export any software or technical or personal data (or direct products thereof) in violation of any applicable export control laws and regulations; and 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 control laws, regulations or policies.
12.10 Publicity. Customer agrees to TCS: (i) disclosure of Customer’s name and logo in sales presentations, marketing materials and press releases; and (ii) use of a brief Customer profile on www.digitate.com. Customer will not issue any press release or make any other public communication, directly or indirectly, with respect to this Agreement or use of the Software or SaaS Services, without prior written consent of TCS.
12.11 Language. The parties acknowledge that they have expressly required that this Agreement and all related documents be drafted in the English language.
12.12 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of TCS. Any assignment in violation of the foregoing will be null and void. TCS may assign its rights and obligation under this Agreement upon written notice to Customer. This Agreement will inure to the benefit of and be binding upon the parties and their respective successors and permitted assigns.
12.13 Local Country Requirements. The parties agree to such other provisions that address local country requirements, as set out in the applicable Order Form.
Last Revision Date: November 01, 2019 and version number: V1.0
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ignio® is a registered trade-mark of Tata Consultancy Services Limited.