This Evaluation Agreement
("Agreement") is a legal agreement between you ("You", "Your" or "Licensee")
and Tata Consultancy Services Limited ("Licensor" Or "TCS"), and governs your
possession and/or use of the software and documentation ("Software") which You
are requesting Use (as hereinafter defined) for evaluation. By clicking and/or
checking an "I Agree" or any similar button or check box presented with these
terms at the time of requesting Use, or by accessing, downloading, installing
(or having the Software installed for example, and not by way of limitation, by
permitting Licensor to install the Software on hardware owned, controlled, or
operated by You), and/or by activating the Software with any associated license
key, or using, as applicable, all or any part of the Software, you agree to the
terms of this Agreement, and agree that You are responsible for compliance with
any applicable local laws.
If You are registering and/or
accessing, downloading, installing or using the Software on behalf of an
organization/entity You represent, You are agreeing to these terms and
conditions on behalf of Your organization/entity, and You represent and warrant
that You have legal authority to bind your organization/entity to the terms of
this Agreement. In that case, "You", "Your" or "Licensee"
also refers to that organization/entity.
If You do not agree with any
of these terms, you must not download, install, activate, use or access 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 must promptly return the Software
and/or access key/credentials provided to You.
TCS may change the terms of
this Agreement from time to time without notice which become effective as soon
as they are posted. To keep abreast of Your license rights and relevant
restrictions, please bookmark this Agreement or the page on which this Agreement
is posted and read it periodically. It is Your responsibility to check for
updates and Your continued use the software after the posting of these changes
shall mean Your acceptance of such changes.
1. Definitions.
a) Derivative Works shall mean works that are prepared in connection
with, based upon or derived from the Software or other proprietary material,
including without limitation, a revision (e.g. updates and upgrades),
modification, customization, enhancement (e.g. creation of new micro-services
or interfaces), improvement (e.g. additional content or metadata within existing
feature or functionality), additions (e.g. new feature or functionality),
interfaces (including stand-alone interface code), adapters, translation,
abridgment, condensation, expansion or any other form in which such material or
any proprietary portion thereof may be recast, transformed, or adapted.
b) Documentation shall mean related user manual, 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
Software
c) Target Environment Licensee's processing computer system hardware,
software and operating environment required for the operation and Use of the Software
as described in the relevant documentation.
d) Use
shall mean operating the Software in object code (machine readable form) and in
case where Software which is downloaded, use shall include the acts of
installing, executing, processing, loading and storing of data by Licensee in
connection with the evaluation of the Software in accordance with the terms of
this Agreement; and in case where Software is made available as a service by
telecommunication over the Internet, access and use of the Software and to the
extent applicable, use shall also include the act of transmitting and
processing data by Licensee in for evaluation of the Software in accordance
with the terms of this Agreement.
2. Evaluation Terms.
a) Subject to the terms and conditions
set forth in this Agreement, and in consideration of the Licensee's acceptance
thereof, TCS grants to Licensee a non-exclusive, personal, non-transferable,
non-sub licensable, non-commercial, limited in time, right use the Software, within
premises and computer systems in Your possession and control, for a period of
thirty (30) days ("Evaluation Period") only for the limited purpose of
Licensee's internal evaluation and testing and not for production or other
productive use in any manner whatsoever, in accordance with instructions and
guidelines provided in the accompanying Documentation, or as may be specified
by TCS from time to time. All fixes, patches, upgrades and updates for the
Software that TCS may (in its sole discretion) provide shall be deemed to be
the part of and treated as Software licensed hereunder. Licensee expressly
acknowledges that the Software may include an internal clock function that may
cause the Software to become inoperable or inaccessible at the end of the
evaluation period and that access to and use of the Software after expiration
of the evaluation period may be prevented.
b) Where the Software is accessed and used as a service,
Licensee may be required to download or install software provided by TCS or any
third party. If such software is provided by a third party, the usage shall be
governed by the terms and conditions of such third party. If such software is
provided by TCS, the usage shall be governed by the terms and conditions of
this Agreement and Licensee agrees not to use such software for any purpose
other than to facilitate or enable Licensee's access and use of the Software as
a service. If such software is required to integrate and/or configure the Software
and/or the service with any third party software applications, the Licensee
shall be responsible for procuring appropriate licenses for such third party
software applications and complying with the applicable terms and conditions of
respective third parties.
c) In particular, and without limitation,
the Licensee represents, warrants and covenants, that it shall NOT and shall
not permit others to:
- use,
copy or modify, enhance or create derivative works of the Software or any
portion thereof, except as expressly permitted in this Agreement;
- sell,
license, sublicense, assign, transfer, distribute or timeshare the Software or
otherwise grant any right under this Agreement to any third party, without the
prior written consent of TCS;
- reverse
engineer, disassemble, de-compile, tamper, recreate, enhance or modify the
Software and/or the service or any part thereof;
- remove,
alter, obscure 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 or any component or output
thereof;
- override
access authorization and access controls for the License's access and Use to
the Software as may be prescribed by TCS or 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
- use
the access rights granted herein to gain or attempt to gain unauthorized access
to other computer systems accessible via the internet, any portion of the
Software and/or service for which Licensee has not been expressly authorized to
use pursuant to this Agreement, or software or computer systems belonging to
others which is also hosted by TCS;
- use
the Software and/or the service to store or transmit malicious code, files,
scripts, agents or programs intended to do harm, including, for example,
viruses, worms, time bombs and Trojan horses;
- Use
the Software and/or the services in any manner or for any purpose that violates
any applicable law or the rights of others;
- interfere
with or disrupt the integrity or performance of any Software and/or the service
or data contained therein;
- perform
or disclose any security testing, including without limitation, penetration
testing, remote access testing, network discovery, vulnerability scanning,
password cracking, etc., of the Software and/or the service or associated
infrastructure without TCS' prior written consent;
- interface
or link or include, without express written permission, the Software with any
other systems or applications or services other than those agreed in writing
and in accordance with the documentation provided by TCS;
- use
any public software or open source software in connection with Software and/or
the service in any manner that requires, pursuant to the license applicable to
such public or open source software, that the Software be disclosed or
distributed in source code form, or made available free or charge to
recipients, or modifiable without any restriction by recipients;
- access
and use of the Software for any business of any affiliate of Licensee; or
- access
or use the Software and/or the service 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.
d) Licensee shall be responsible for all
activity occurring under its control and ensure that they abide by all applicable
local, state, national and foreign laws, treaties and regulations in connection
with their use of the Software, including those related to data privacy,
international communications and the transmission of technical or personal
data. Licensee shall not export or re-export any software or technical data (or
direct products thereof) provided under this Agreement in violation of any
applicable export control laws and regulations. Licensee shall employ all
physical, administrative and technical controls, screening and security
procedures and other safeguards necessary to: (a) securely administer the
distribution and use of all access credentials and protect against any
unauthorized Use of the Software; (b) the security of its information systems
used to Use the Software and/or the service; and (c) for its users' compliance
with the terms of this Agreement. Licensee acknowledges and agrees that where
Software is provided as a service or Licensee requests some support from TCS
(which TCS may provide in its sole discretion), the Licensee Data (as
hereinafter defined) may be transferred or stored outside the EEA (European
Economic Area) or the country where the Licensee and/or its authorized users
are located in order to carry out the services and TCS's other rights under
this Agreement.
e) Licensee remains responsible for any
and all data, test data, test scripts, information, materials and content of
any database input / uploaded / stored / processed or otherwise made available
by it and transmission, transfer, archival, conversion or use of any and all
data (including personally identifiable data) and/or introduced into the Software
and/or the Service, by or on behalf of the Licensee ("Licensee Data"). All
rights, title and interests in the Licensee Data shall always remain with
Licensee and TCS shall not have any rights in the Licensee Data except as
stated herein. To the extent any Licensee Data is required to be used in the operation
and/or performance of Software and/or the services hereunder, the Licensee
hereby grants to TCS a non-exclusive, irrevocable, worldwide, fully paid up and
royalty free right and license to use, copy, display, sublicense and distribute
such Licensee Data. Licensee shall have sole responsibility for the accuracy,
quality, integrity, legality, reliability, appropriateness, and intellectual
property ownership or right to use of all Licensee Data, and TCS shall not be responsible
or liable for the deletion, corruption, correction, destruction, damage, loss
or failure to store or process any Licensee Data. Licensee agrees that all
Licensee Data will be in format compatible with the Software and/or the service.
No data back-up or service is made available under this Agreement and the same
shall be at the sole responsibility of the Licensee.
f) If
TCS processes any personal data on Licensee's behalf when performing its
obligations under this Agreement, such as those submitted by You or collected
by TCS e.g. Internet protocol ("IP") address used to connect your computer to
the Internet (which may allow us to identify your geographic location) at the
time of registering for or downloading the Software, the Parties record their intention
that the Licensee shall be the data controller and TCS shall be a data
processor and in any such case:
- the Licensee acknowledges and agrees that
the personal data may be transferred or stored outside the EEA (European
Economic Area) or the country where the Licensee and its authorised users are
located in order to carry out the services and TCS's other rights under this
Agreement;
- the Licensee shall ensure that the
Licensee is entitled to transfer the relevant personal data to TCS so that TCS
may lawfully use, process and transfer the personal data in accordance with
this Agreement;
- the Licensee shall ensure that the
relevant third parties have been informed of, and have given their consent to,
such use, processing, and transfer as required by all applicable data
protection legislation;
- TCS shall process the personal data in
accordance with the terms of this Agreement and its Privacy Policy available at
www.tcs.com; and
- each Party shall take appropriate
technical and organisational measures against unauthorized or unlawful
processing of the personal data or its accidental loss, destruction or damage.
g) Licensee agrees that TCS may, upon
notice of at least five (5) days, audit Licensee's Use of Software for
compliance with the terms & conditions of this Agreement and agrees to
provide access (including remote access) to sites/equipment where Software is
used/installed and/or supply all relevant information necessary for such audit.
If any audit reveals Licensee to be in breach of this Agreement, TCS shall be
entitled to terminate the license granted hereunder, without prejudice to any
other rights or remedies TCS may have under this Agreement or otherwise.
h) As between TCS and Licensee, Licensee
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 Software, which is and/or to be used in relation to the Software, (d)
making regular back-ups of Licensee's data processed via the Software, and (e)
complying with any laws or regulations applicable to Licensee's industry that
are generally not applicable to licensed product providers.
3. Delivery. TCS shall deliver the Software via
electronic means only. Delivery acceptance of the Software shall be considered
to be complete within one (1) days of the delivery of the access credentials or
download thereof, whichever is earlier, unless within that period the Licensee
makes a report to the contrary to TCS.
4. Confidential
Information. Licensee
acknowledges and agrees that the Software (including the operation of or
methods, techniques, underlying technology, tools or processes used in
creating, developing, customizing, implementing, configuring, integrating,
applying or maintaining the Software), pricing therefor, and any plans or
roadmaps provided by TCS constitutes confidential information of TCS. Licensee agrees to hold the all information and data relating
thereto (collectively, the "Confidential Information") in confidence. Licensee
may (i) use the Confidential Information only for the purpose stated in Section
1(a) and (b), and (ii) disclose the Confidential Information only to its
employees who have a need to know and who have been advised of and are bound by
confidentiality obligations no less protective than the provisions herein.
Licensee agrees to take reasonable steps to protect the Confidential
Information from misappropriation or misuse. Licensee shall notify TCS
immediately if Licensee learns of any misappropriation, or unauthorized use or
disclosure of the Confidential Information. However, this restriction does not
apply to information which: (a) Licensee
independently developed without reference to or use of the Confidential
information of TCS; (b) is in public domain without breach of the confidentiality
obligation or made public by TCS; (c) is disclosed with TCS' prior written
approval; or (d) is revealed pursuant to court order or process of law provided
Licensee gave as much advance written notice to TCS as possible regarding the
disclosure and cooperated in obtaining injunctive reliefs against such
disclosure.
5. Ownership
and Proprietary Rights.
a) 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 Software and
Documentation, including without limitation, in or attached to any Derivative
Works of the Software and the Documentation, whether solely or jointly
conceived, or even if made for the Licensee.
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 Software,
Documentation or any Derivative Works thereof. The Customer only receives the
right to Use for the Term explicitly granted by TCS to Customer hereunder.
b) Licensee acknowledges and agrees that
TCS shall have the right to collect, use, disclose, publish, or otherwise
exploit without restriction or compensation to Licensee, including without
limitation, in future releases or further developments, any technical data
relating to the use of the Software, comments or feedback that Licensee
provides regarding the Software, Documentation or the service and reference the
license granted to the Customer; or any and all knowledge and information
arising out of use of the Software (including Derivative Works, if any),
Documentation or the service by the Customer.
6. Third
Party Software.
a) Notwithstanding the Use grant in
Section 2, Customer acknowledges that certain components of the Software may be
covered by so-called "open source" software licenses ("Open Source Software" or
"OSS"). Open Source Software, if any, contained in this Software and the use
thereof, shall be subject to the terms and conditions of the relevant open
source license agreement only. Open Source Software and related information
(including relevant notices) for the currently licensed version of the Software
are mentioned in the accompanying Documentation. To the extent the terms of the
licenses applicable to OSS 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 terms of the licenses applicable to 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 Licensee.
b) The Software may contain third party
proprietary software components. Third party software, if any, contained in
this Software and the use thereof, shall be subject to the terms and conditions
of the respective third party vendor/licensor. Warranties, if any, shall be
from the respective third party vendor/licensor as specified in their license
agreement, with the limitations/restrictions as applicable. The license
agreement/s in respect of the embedded third party software, is/are provided in
the Documentation.
For
MasterCraft range of Software, the OSS, Third party software and related
information (including relevant notices) is available at the following link: https://mastercraft.tcsapps.com/notices. The password will be shared along with
the activation key or the access credentials.
7. Warranty
Disclaimer and Limitation of Liability. The Software (including any Derivative Works), Documentation and related
information, including without limitation, Confidential Information and any
third party software component (if any) contained in the Software,
Documentaiton and/or the service, is/are provided "AS IS" without any warranty
of any kind, whether expressed or implied, including, but not limited to, any
implied warranty of merchantability, non-infringement, fitness for a particular
purpose, system integration, accuracy, reliability, error-free,
un-interruption, support (unless otherwise specified), correction, repair or
otherwise. In no event shall TCS or any of its licensor or any third party be liable
for any direct, indirect, incidental, special, exemplary or consequential
damages suffered by Licensee or any third party (including but not limited to,
use or loss of use; loss or damage of data, lost profits, business, revenue,
goodwill or anticipated savings; business interruption; procurement of
substitute goods or services) however caused and on any theory of liability,
whether in contract, strict liability, or tort (including negligence or
otherwise) arising from or as a result of using the Service, even if advised of the possibility
of such damage.
8. Termination
a) This Agreement shall terminate upon
expiry of Evaluation Period, or the date on which the Software and/or the
service automatically disables or becomes inaccessible, or the date of
termination of this Agreement in accordance with the provisions herein,
whichever is earlier.
b) If You breach any provisions of this
Agreement or violate any law, rule or regulation, Your access and use of the Software
is automatically terminated and any subsequent access and use is unauthorized.
TCS shall have the right, but without any obligation, to restrict access to
and/or immediately remove or block any and all contents uploaded by the Licensee
that violates these terms and conditions or is non-compliant in TCS' sole
discretion and TCS shall have the right to take appropriate measures available
to it under the applicable law.
c) Either Party may terminate this
Agreement for any reason immediately upon notice with no obligation or
liability of any kind on the part of the other Party except as to which has
already accrued or otherwise agreed to under this Agreement. In the event of
termination or expiration of this Agreement, Licensee shall cease to use the Software,
Documentation and Confidential Information, in whatever form disclosed
hereunder, immediately upon expiration or termination of the Agreement. All
copies of Software, Documentation and Confidential Information received by
Licensee and/or made by use of service shall be turned over to TCS and deleted
from Licensee's computer systems in the event of termination or expiration of
this Agreement and on request from TCS, Licensee shall certify in writing its
compliance with this paragraph to TCS within five (5) days of termination or
expiration of this Agreement. The provisions of Sections 2 (c),(d),(e), (g), 4,
5, 7, 8(c), 9(a),(c),(d),(e) and (f) shall survive expiration or termination of
this Agreement.
9. Miscellaneous:
a) Indemnification:
Licensee agrees to indemnify and hold TCS and its subsidiaries, affiliates,
officers, agents, employees, co-branders or other partners, and licensors
harmless from any claim or demand or expense, including reasonable attorneys'
fees, due to or arising out of use or storage by TCS of any Licensee Data
provided/uploaded by or on behalf of Licensee, Licensee's use of the Software,
Documentation and/or the service in a manner contrary to the provisions of this
Agreement and documentation or any matters connected therewith.
b) No
Assignment: Licensee shall not sell, transfer or assign any right or obligation
hereunder, except as expressly provided herein, without the prior written
consent of TCS. Any assignment in
violation of this sub-clause shall be void.
c) 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 of this Agreement. In order to be effective, all waivers under this
Agreement must be in writing and signed by the waiving Party.
d) Governing
Law & Dispute Resolution: This Agreement shall be governed by laws of State
of New York, USA, without giving effect to the conflicts of law principles
thereof. Subject to the arbitration provisions below, courts in the city of New
York shall have the exclusive jurisdiction over any matter arising out of or
connected with this Agreement.
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 settled by arbitration administered by the
American Arbitration Association ("AAA") in accordance with its Commercial
Arbitration Rules (the "Rules") by a single independent and neutral arbitrator
appointed by AAA within fifteen (15) days of reference of dispute in
accordance with the said Rules and shall be attorney with at least fifteen (15)
years experience or a former judge. The seat of
arbitration and the arbitration proceedings shall be at New York. The award
made in pursuance thereof shall be final and binding on the Parties. 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.
Nothing herein shall prohibit TCS
from seeking a temporary restraining order, preliminary injunction or other
provisional relief if, in its judgment, such action is necessary to avoid
irreparable damage, to preserve the status quo, or to prevent or stop the
violation of these term and conditions and/or infringement of intellectual
property rights or other proprietary rights or Confidential Information of TCS,
its affiliates and/or their respective licensors, or from bringing and pursuing
legal action to specifically enforce the provisions of this clause.
e) Notices:
All notices provided for or permitted under this Agreement to TCS shall be
deemed effective upon receipt, and shall be in writing and (i) delivered
personally, (ii) sent by commercial overnight courier with written verification
of receipt, or (iii) sent by certified or registered mail, postage prepaid and
return receipt requested. Notices to TCS
shall be sent to the attention of its Legal Department, Tata Consultancy
Services Limited, 101 Park Avenue, NY 10178, NY, with a copy shall be sent to
the Deputy General Counsel, Tata Consultancy Services Limited, TCS House,
Raveline Street, Fort, Mumbai 400001, India. Notices to Licensee shall be
sent at the email address provided by Licensee at the
time of requesting for Use of the Software.
f) Severability:
If any provision of this Agreement be held invalid or unenforceable by 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.
g) Entire
Agreement: This Agreement along with its Schedules and Annexures thereto shall
constitute the complete agreement between the Parties and supersede all prior
or contemporaneous agreements or representations, written or oral, concerning
the subject matter of this Agreement. This Agreement may not be modified or
amended except in writing signed by a duly authorized representative of each Party.
By using the Service, Licensee acknowledges that Licensee has read this
Agreement, understands it, and agrees to be bound by the terms and conditions.
Copyright © 2021 Tata
Consultancy Services Limited. All Rights Reserved.