This End User License Agreement (“Agreement”) is between Tata Communications America, Inc., a Virginia corporation (Tata Communications America), and the installer (“Customer”). This Agreement applies to the Tata Communications America software (the “Software”) obtained either directly from Tata Communications America or from a Tata Communications America authorized partner.

1. Software Terms.

1.1. Software License. Subject to the terms and conditions of this Agreement and any other limitations that may be expressly stated in the quote pursuant to which the Software was licensed, Tata Communications America grants to Customer a nontransferable, nonexclusive, revocable, worldwide license (without the right to sublicense) to use (in accordance with the documentation made available by Tata Communications America) the Software during the license term and on the equipment (e.g., servers, personal computers, or mobile devices) and networks specified (or such other successor network supported by and compatible with the Software) in the applicable quote that has been accepted by Tata Communications America, in executable object code format only. These rights include the right for Customer to permit its clients, customers and each of their employees, contingent workers and contractors (collectively, “Users”) to use the Software on their equipment, which they use in connection with their relationship with Customer, for so long as (i) this Agreement and subscription term is active, (ii) Customer pays all amounts due for their use of the Software, (iii) such User’s relationship with Customer continues, (iv) such Users are required to comply with this Agreement, including Section 2.1, as if they were Customer, and (v) Customer and its User’s comply with all relevant export laws. Customer will be responsible for the acts and omissions of such Users and cause them to comply with the terms and conditions of this Agreement.
1.2. Termination of Software License. The license in Section 1.1 and all of Customer’s rights to use the Software will terminate immediately in the event that this Agreement terminates or expires for any reason, Customer does not pay for any renewal period, or in the event that Customer materially breaches any provision of this Agreement. Upon any such termination, Sections 1.2, 2, 3, 4.1, 5.3, 6, 7, 8 and 9 will survive and Customer shall promptly discontinue all use of the Software. Upon termination, Customer shall promptly return the Software to Tata Communications America in accordance with Tata Communications America’ instructions and destroy any copies on its devices, networks, or systems. Upon Tata Communications America request, Customer shall certify in writing the complete return and/or destruction of all copies of the Software.

2. Software Restrictions and Title.

2.1. Restrictions. Customer agrees that it will not (and will not authorize any User or third party to) (i) reproduce, modify, distribute, publish, rent, lease, sublicense or assign, disclose, transfer or make available to any third party any portion of the Software (or any related documentation) in any form, unless expressly permitted under this Agreement; (ii) reverse engineer, decompile, or disassemble any portion of the Software, or otherwise attempt to decrypt, extract or derive source code for, or any algorithms or data structures embodied within, the Software or any parts thereof; (iii) use the Software in order to build a similar or competitive product or service; (iv) publish or disclose to any third party any performance or benchmark tests or analyses, the results of audits or ethical hacks, or other non-public information relating to the Software or the use thereof, except as may be authorized by Tata Communications America in writing; (v) use the Software for purposes not expressly authorized or on devices, equipment (e.g., servers, personal computers, or mobile devices) or networks that are not subject to a quote authorized by Tata Communications America; or (vi) exceed the maximum bitrate or number of devices authorized by the quote. Use on additional devices, equipment or networks may be subject to additional fees. Any future release, update, or other addition to functionality of the Software made available by Tata Communications America to Customer, shall be subject to these terms and conditions, unless Tata Communications America expressly states otherwise. The Software is copyrighted and protected by the laws of the United States and other countries, and international treaty provisions. Customer shall preserve and shall not remove any copyright or other proprietary notices in the Software, its documentation and all copies thereof.
2.2. Title to Software. Tata Communications America and its affiliates and licensors shall retain all right, title and interest in the Software and all intellectual property rights therein, including without limitation all patent, trademark, trade name and copyright, whether registered or not registered. No license or other express or implied rights of any kind are granted or conveyed except for the limited internal license expressly provided above. Any rights not expressly granted by Tata Communications America in this Agreement are reserved.

3. Third Party Code.

Certain items of software code provided with the Software are subject to “open source” or “free software” licenses (“Third Party Code”), a list of which is available in the Software documentation as necessary. The Third Party Code is not subject to the terms and conditions of this Agreement, except for Sections 3, 5.2, and 7. Instead, each item of Third Party Code is licensed under the terms of the license that accompanies such Third Party Code. Nothing in this document limits Customer’s rights under, or grants Customer rights that supersede, the terms and conditions of any applicable license for the Third Party Code, including any rights to copy, modify, or distribute Third Party Code under the applicable license. If Tata Communications America makes modifications to such Third Party Code and if the applicable license requires that such modifications be made available and Tata Communications America does not already publish such modifications via the applicable Third Party Code community, then Tata Communications America will make its modifications available via a secure site for download.

4. Feedback, and Customer References.

4.1. Feedback. Tata Communications America may periodically request that Customer provide, and Customer may provide to Tata Communications America, feedback regarding the use, operation, performance, and functionality of the Software (collectively, “Feedback”). Such Feedback may include information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features. Customer will use reasonable efforts to provide any Software performance results automatically generated by the Software to Tata Communications America as reasonably requested. Customer hereby grants to Tata Communications America a perpetual, irrevocable, worldwide, sublicenseable, and royalty-free right to use and otherwise exploit the Feedback in any manner, and such right shall survive any expiration or termination of this Agreement. Tata Communications America shall not disclose Customer’s name or the name of any Customer employee to a third party in connection with any Feedback unless permission to use this Feedback is obtained in writing from the Customer.
4.2. Customer References. Tata Communications America may request references from time to time in the form of press releases, blog posts, testimonial videos, case studies, as well as personal references (e.g., telephone or email conversations) with existing or prospective customers or partners of Tata Communications America or its affiliates (“References”). The contents of any public-facing References shall be approved by the parties and Tata Communications America or its affiliate shall obtain Customer’s prior approval for any references, such approvals not to be unreasonably withheld. Customer also agrees that Tata Communications America and its affiliates may use Customer’s name and logo, subject to Customer’s then-current trademark usage guidelines, in Tata Communications America’ or its affiliates’ marketing materials or communications (including, but not limited to, Tata Communications America’ and its affiliates’ website and in Tata Communications America’ and its affiliates’ marketing presentations) for the sole purpose of indicating Customer as a user of the Software and any ancillary service under other agreements between the parties.

5. Software Warranty.

5.1. Software Warranty. The Software provided under the quote is warranted to perform in substantial accordance with the corresponding Tata Communications America standard configuration documentation for ninety (90) days following the initial delivery to Customer. Tata Communications America, at its option, will repair or replace any material defect of the Software to comply with such warranty identified during the warranty period. If Tata Communications America is unable or unwilling to repair or replace such Software within a reasonable period of time after notice of a material defect, Customer may terminate its license to the defective software. This Section 5.1 sets forth the sole and exclusive remedy for breach of this warranty and Tata Communications America reserves the right for any repairs to consist, in whole or in part, of new or modified software components that are functionally similar to the original components. This warranty is extended to Customer and its employees only and in no event to any other party. This warranty does not cover defects resulting from: (i) use of Software other than in a normal and customary manner in accordance with Tata Communications America’ documentation, (ii) alterations or modifications made to the Software that are not authorized by Tata Communications America in writing, or (iii) combination of the Software with third party software not authorized by Tata Communications America in writing.
5.2. Title and Non-Infringement. Tata Communications America represents that to the best of its actual knowledge it or its licensors own the Software and it has the right to license the Software and that the Software does not directly infringe the intellectual property rights of any third party. The sole and exclusive remedy for a breach of this representation and warranty is set forth in Section 6.
5.3. Disclaimer. THE WARRANTY IN SECTION 5 IS GIVEN IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, AND TATA COMMUNICATIONS AMERICA AND ITS RESELLERS, AFFILIATES, AND LICENSORS HEREBY DISCLAIM ALL OTHER WARRANTIES RELATING TO THE SOFTWARE AND RELATED SERVICES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. TATA COMMUNICATIONS AMERICA DOES NOT WARRANT THAT THE OPERATION OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE. CUSTOMER ACKNOWLEDGES AND AGREES THAT NO SECURITY SOFTWARE CAN BE GUARANTEED TO BE PERFECTLY SECURE AND THAT INSECURITIES OR VULNERABILITIES MAY ARISE IN THE SOFTWARE OR IN THE WAY IT IS USED. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 5, TATA COMMUNICATIONS AMERICA AND ITS RESELLERS, AFFILIATES AND LICENSORS PROVIDE THE SOFTWARE “AS IS,” “AS AVAILABLE,” AND WITH ALL FAULTS.

6. Indemnification.

Tata Communications America will defend at its own expense any action against Customer brought by a third party to the extent that the action is based upon a claim that the Software directly infringes any copyrights or U.S. patents issued as of the date of Tata Communications America’ shipment of the Software or misappropriates any trade secrets. Tata Communications America will pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action. If the Software becomes, or in Tata Communications America’ opinion is likely to become, the subject of an infringement claim, Tata Communications America may, at its option and expense, either (i) procure for Customer the right to continue exercising the rights licensed to Customer in this Agreement; (ii) replace or modify the Software so that it becomes non-infringing and remains functionally equivalent; or (iii) accept return of the Software from Customer, terminate all rights and licenses granted herein to Customer. Notwithstanding the foregoing, Tata Communications America will have no obligation under this Section 6 or otherwise with respect to any infringement claim based upon (a) any use of the Software that is not in accordance with Tata Communications America’ documentation or this Agreement; (b) any use of the Software in combination with other products, equipment, software, or data not supplied by Tata Communications America if such infringement would not have arisen but for such combination; (c) any use of any release of the Software other than the most current release made available to Customer; or (d) any modification or alteration of the Software by any person other than Tata Communications America (each an “IP Exclusion”). This Section 6 states Tata Communications America’ entire liability and Customer’s sole and exclusive remedy for infringement claims and action. The foregoing obligations are conditioned on Customer notifying Tata Communications America promptly in writing of such action, giving Tata Communications America sole control of the defense thereof and any related settlement negotiations, and cooperating and, at Tata Communications America’ reasonable request and expense, assisting in such defense. Customer will defend at its own expense any claim against Tata Communications America and its affiliates resulting from (a) an IP Exclusion or (b) Customer’s and/or its Users’ relationship or use of the Software, except to the extent the claim is subject to indemnification above by Tata Communications America or caused by Tata Communications America’s breach of its confidentiality obligations in Section 8 or gross negligence or willful misconduct.

7. Limitation of Liability.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, Customer agrees that NEITHER Tata Communications America NOR ITS RESELLERS, AFFILIATES, LICENSORS, OR OTHER SUPPLIERS shall be responsible for any loss or damage to Customer or third parties caused by failure of the Software to function OR FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY. in no event will Tata Communications America OR ITS RESELLERS, AFFILIATES, LICENSORS, OR OTHER SUPPLIERS be liable for any special, consequential, exemplary, incidental, or indirect damages, including lost profits, in connection with the use of the Software, RELATED SUPPORT OR SERVICES, or other materials provided along with the Software or in connection with any other claim arising from THIS AGREEMENT, even if advised of the possibility of such damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, TATA COMMUNICATIONS AMERICA’ AND ITS RESELLERS’, AFFILIATES’, LICENSORS’, OR OTHER SUPPLIERS’ AGGREGATE CUMULATIVE LIABILITY UNDER or relating to this agreement (INCLUDING THE SOFTWARE) SHALL NOT EXCEED THE GREATER OF (I) $150,000 or (II) TWICE THE LICENSE FEES PAID BY CUSTOMER FOR THE SPECIFIC SOFTWARE THAT GAVE RISE TO SUCH CLAIM. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED IN ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN WILL REMAIN IN EFFECT.

8. Confidential Information.

“Confidential Information” means the Software and any nonpublic information of a party (the “Disclosing Party”), whether disclosed orally or in written or digital media to the other party (the “Receiving Party”) that is identified as “confidential” or with a similar legend at the time of such disclosure. Confidential Information of Customer will also include Confidential Information of its Users. Information will not constitute the other party’s Confidential Information if it (i) is already known by the Receiving Party without obligation of confidentiality; (ii) is independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information; (iii) is publicly known without breach of this Agreement; or (iv) is lawfully received from a third party without obligation of confidentiality. The Receiving Party shall not use or disclose any Confidential Information except as expressly authorized by this Agreement and shall protect the Disclosing Party’s Confidential Information using the same degree of care that it uses with respect to its own confidential information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. The Receiving Party may disclose Confidential Information to its affiliates, employees, and representatives as necessary to perform its obligations or exercise its rights under this Agreement and shall cause such affiliates, employees, and representatives to comply with confidentiality restrictions consistent with this Section. The Receiving Party shall take prompt and appropriate action to prevent unauthorized use or disclosure of the Disclosing Party’s Confidential Information. If any Confidential Information must be disclosed to any third party by reason of legal, accounting or regulatory requirements, the Receiving Party shall, to the extent permitted by law, promptly notify the Disclosing Party of the order or request and permit the Disclosing Party (at its own expense) to seek an appropriate protective order.

9. General Provisions.


9.1. Audit Rights. Tata Communications America will have the right, during normal business hours and upon at least ten (10) days prior notice, to have an independent audit firm selected by Tata Communications America inspect Customer’s facilities and audit Customer’s records relating to Customer’s activities pursuant to this Agreement and the Software. Such audits will be undertaken to determine whether the Customer has not exceeded the specifications authorized by the quote, has paid to Tata Communications America or its authorized resellers the correct amounts owed under the applicable quote and has otherwise complied with the terms of this Agreement, including without limitation any applicable use restrictions. The audit will be conducted at Tata Communications America’ expense, unless the audit reveals that Customer has underpaid the amounts owed to Tata Communications America or its authorized reseller by five percent (5%) or more during the audited period, in which case Customer will reimburse Tata Communications America for all reasonable costs and expenses incurred in connection with such audit. Customer will promptly pay to Tata Communications America any amounts shown by any such audit to be owed. Such audits will be conducted no more than once in any period of twelve (12) consecutive months. Any confidential or proprietary information of Customer disclosed to Tata Communications America or the independent accounting firm in the course of the audit will be subject to confidentiality obligations or duties reasonably consistent with this Agreement’s confidentiality obligations.
9.2. Governing Law and Dispute Resolution. This Agreement will be governed by the laws of the state of Delaware, without regard to any provision of law that would require or permit the application of the substantive law of any other jurisdiction or to the United Nations Convention on the International Sale of Goods. In the event of a dispute, each party will designate a representative (each a “Representative”) to meet in good faith to settle any dispute arising under or related to this Agreement. The Representatives will negotiate in an effort to resolve the dispute without the necessity of any formal proceeding. Formal proceedings for the resolution of the dispute may not be commenced until the earlier of: (i) either party concluding that resolution through continued negotiation does not appear likely; or (ii) the passage of thirty (30) calendar days since the initial request to negotiate the dispute was made; provided, however, that a party may file earlier to avoid the expiration of any applicable limitations period, to preserve a superior position with respect to other creditors, or to apply for interim or equitable relief. If such dispute remains unsettled for more than thirty (30) days after either party gives the other written notice thereof, then such dispute shall be submitted to the American Arbitration Association (“AAA”) in Wilmington, Delaware for arbitration pursuant to the AAA’s then current rules of commercial arbitration. THE PARTIES AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If the arbitration provision in this section is found to be unenforceable or not to apply for a given dispute, then the proceeding must be brought exclusively in a court of competent jurisdiction in Delaware. Notwithstanding the foregoing, either party may go directly to court to file for interim, equitable, or other relief in connection with confidentiality or intellectual property matters.
9.3. Notices. All notices or other communications required under Sections 6-9 of this Agreement shall be in writing and shall be delivered by personal delivery, certified overnight delivery, or registered mail (return receipt requested) and shall be deemed given upon personal delivery or upon confirmation of receipt. All other notices and communications may be made by email or other applicable method. Notices will be sent to the signatories at the addresses set forth at the end of this Agreement or such other individual or address as either party may specify in writing.
9.4. Severability; Waiver. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
9.5. Export. The Software and related technology are subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Tata Communications America, or any products incorporating such data, in violation of the United States export laws or regulations.
9.6. No Assignment. This Agreement, and Customer’s rights and obligations herein, may not be assigned by Customer without Tata Communications America’ prior written consent, and any attempted assignment in violation of the foregoing will be null and void. Notwithstanding the foregoing, Customer may assign this Agreement upon notice to Tata Communications America within three (3) months of the Effective Date to an entity that it is planning to create and control that will facilitate and manage communications between financial brokers, dealers and advisers, provided that there are no outstanding fees due under this Agreement and Customer remains liable for such assignee’s payment obligations.
9.7. Affiliate Rights. Subject to the other provisions of this Agreement, Customer’s wholly owned affiliates may use the Software as if they were Customer, and Customer will be responsible for their acts and omissions relating thereto.
9.8. U.S. Government End Users. The Software and related documentation, are “commercial items” as defined in 48 CFR 2.101 and their use is subject to the policies set forth in 48 CFR 12.211, 48 CFR 12.212 and 48 CFR 227.7202, as applicable.
9.9. Force Majeure. Tata Communications America shall not be liable hereunder by reason of any failure or delay in the performance of its obligations under this Agreement on account of strike, shortage, riot, insurrection, fire, flood, storm, explosions, act of God, war, governmental action, labor condition, earthquake, material shortage or any other cause that is beyond the reasonable control of Tata Communications America.
9.10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together will constitute one instrument.
9.11. Entire Agreement; Modification. This Agreement constitutes the entire agreement between the Customer and Tata Communications America and supersedes in its entirety any and all oral or written agreements previously existing between Customer and Tata Communications America with respect to the subject matter hereof. This Agreement may only be amended in a writing signed by duly authorized representatives of the parties.