SAMSUNG SERVICE TERMS AND CONDITIONS
1 Definitions. Capitalized words used in this Agreement shall have the following meanings.
- 1.1 “Affiliate” means, with respect to a Party, a Person that Controls or is Controlled by, or is under common Control with, such Party.
- 1.2 “Applicable Law” means all applicable laws, statutes and regulations, and all applicable orders, judgments, decisions, recommendations, rules, policies or guidelines passed or issued by any regulatory authority or any competent court, to the extent applicable to either of the Parties, as the same may be amended and in effect at all times during the Term.
- 1.3 “Authorized Users” means the Licensee’s employees or contractors authorized by the Licensee, who have binding written agreements with the Licensee to protect against the unauthorized use and disclosure of Samsung’s Confidential Information.
- 1.4 “Confidential Information” has the meaning set forth in Section 7.
- 1.5 “Control” means cases in which business contents are actually controlled under the Korean Monopoly Regulation and Fair Trade Act.
- 1.6 “Data Compromise” means any compromise in the security, confidentiality or integrity of any Personal Information, including unlawful or unauthorized access, use, acquisition, transmission, alternation, disclosure, deletion or destruction thereof.
- 1.7 “Documentation” means any technical specifications, development guidelines, hardware schematics, hardware diagrams, technical layouts and other specifications or documentation that Samsung may make available or provide to the Licensee for use in connection with the Samsung Service.
- 1.8 “Intellectual Property Rights” means all past, present and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights and mask work rights; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents and industrial property rights; (v) other proprietary rights of every kind and nature; and (vi) rights over or relating to registrations, renewals, extensions, combinations, divisions and reissues of any of the rights referred to in clauses “(i)” through “(v)” above.
- 1.9 “Licensee Service” means the Product developed or optimized by the Licensee to enable users to easily access Products through the Samsung Service, pursuant to the terms of this Agreement, including without limitation the Licensee’s Technology, together with their applicable upgrades, enhancements, fixes and versions, that the Licensee may deliver to Samsung and/or Users under this Agreement.
- 1.10 “Marks” means trade names, trademarks, service marks, designs, logos, domain names and other distinctive brand features. For clarification, “Licensee Marks” means the Marks owned and/or controlled, in whole or in part, by the Licensee or its Affiliates and made available by the Licensee for use by Samsung . “Samsung Marks” means the Marks owned and/or controlled, in whole or in part, by Samsung or its Affiliates and made available by Samsung for use by the Licensee in relation to the Licensee Service and/or Product.
- 1.11 “Person” means a natural person, partnership, limited liability partnership, corporation, limited liability company, trust, unincorporated association, joint venture or other entity or any federal, state or local government, agency, commission, department or instrumentality.
- 1.12 “Personal Information” is information in any media that alone identifies or when used in combination with identifying information could reasonably be used to identify a natural person, including but not limited to a person’s first and last name, home or other physical address, telephone number, fax number, email address or other online identifier, social security number or other third-party issued identifier (including state identification number, driver’s license number, or passport number), biometric data, health information, credit card or other financial information (including bank account information), IP address and cookie information or any other device-specific number or identifier.
- 1.13 “Product” means any product or service manufactured, controlled or operated by the Licensee, on behalf of the Licensee and its Affiliates, or distributed under a Licensee Mark.
- 1.14 “Samsung Device” means any consumer product manufactured by Samsung or distributed under a Samsung Mark in which the Samsung Service is implemented and enabled by Samsung, at its sole discretion.
- 1.15 “Samsung Service” means the software (including downloadable tools, software development kits ('SDK'), which may be downloadable by the Licensee) and services provided by Samsung and its Affiliates under this Agreement, including but not limited to the Cloud Partner Service, to enable a User to easily access and use Products through a product or service, which may include application programming interfaces ('APIs'), Documentation, SDKs, data, files, libraries, materials, integrated development environment ('IDE'), software (source code, object code), simulators, tools, Updates, certifications and publications provided or made available to the Licensee by Samsung under this Agreement for use in connection with the Licensee Services.
- 1.16 “Technology” means any inventions (patentable or not), ideas, concepts, processes, methods, know-how, designs, information, data, software programs (including source and object codes), application programming interfaces, documentations, specifications, techniques, software development toolkits, products, devices, apparatuses, works of authorship, and other forms of technology.
- 1.17 “Term” has the meaning set forth in Section 6.
- 1.18 “Territory” means any territory where Samsung makes the Samsung Service publicly available.
- 1.19 “Third -Party Software” shall mean any software, computer programming code or accompanying documentation owned by any third party, including but not limited to any of following: (a) any software licensed from a third party; (b) any software placed in the public domain and accessible to anyone without any specific license terms attached thereto; (d) any software disclosed or distributed under a license that permits users to use, modify, improve or distribute such software and/or documentation and requires any or all of the following: (i) the making available of source code, object code and/or accompanying documentation of the software or any modifications to, or derivatives of, such software and/or documentation; or (ii) the granting of the right to distribute, use, create modifications to, or create derivative works from, such software and/or documentation at no charge or on a royalty-free basis; or (e) any software licensed under the Apache License, Artistic License, Berkeley Software Distribution License, GNU General Public License, GNU Library or Lesser General Public License, Mozilla Public License, Netscape Public License, Sun Community Source License or Sun Industry Standards License.
- 1.20 “Updates” means, in regards to a Technology, as applicable, any bug fixes, enhancements, modifications, new releases, new versions, supplements, updates or upgrades.
- 1.21 “User” means any user of a Samsung Device who accesses the Licensee Service by means of the Samsung Service pre-loaded on, or downloaded to, such Samsung Device.
2 Grant of License SUBJECT TO SDK LICENSE
- 2.1 Subject to the terms of this Agreement, Samsung hereby grants a personal, limited, non-exclusive, revocable, non-sublicensable and non-transferrable license and right to the Licensee during the Term, within the Territory, to access and use certain aspects of the Samsung Service which Samsung designates to provide to the Licensee, for the sole purpose of making the Licensee Service compatible and interoperable with the Samsung Service.
- 2.2 Third -Party Software. Samsung Service may include Third-Party Software , which may be subject to separate Third -Party Software license terms and conditions governing the Licensee’s use of that Third -Party Software, to the limited extent that the Third -Party Software license expressly supersedes this Agreement.
- 2.3 Restrictions. Except as expressly permitted under Section 2.1 and 2.2, the Licensee shall not:
- (a) use, disclose, display, copy, store, modify, reproduce, distribute, sell, transfer, sublicense, assign, publish or permit others to use, disclose, display, copy, store, modify, reproduce, distribute, sell, transfer, sublicense, assign or publish any Samsung Service for any purpose other than as specified in this Agreement;
- (b) use the Samsung Service for any illegal purposes; to make unsolicited offers or advertisements; to impersonate or falsely claim affiliation with any person or entity; to misrepresent, harass, defraud or defame others; to post obscene or unreasonably offensive material; to negatively present the Samsung Service; or for any commercial purposes;
- (c) directly or indirectly disassemble, reverse engineer or tamper with the Samsung Service, transmit malicious code or collect Personal Information through the Samsung Service; or
- (d) directly or indirectly interrupt the functionality of or tamper with the APIs or any servers used in providing Samsung Service, or unreasonably affect others' enjoyment of the Samsung Service in any way.
- 2.4 Feedback; Notification of Issue.
- (a) Feedback. The Licensee may provide any feedback, idea, improvement or suggestion regarding the Samsung Service or Samsung Devices. If the Licensee provides Samsung any feedback, Samsung may use it without obligation to the Licensee and the Licensee hereby irrevocably assigns to Samsung all rights, titles and interests over the feedback.
- (b) Notification of Issue. The Licensee shall promptly notify Samsung of: (i) any vulnerability or security issues within a Licensee Service; (ii) any discontinuation or suspension of service or support with respect to a Licensee Service; (iii) other events requiring Samsung to suspend the access of a Licensee Service to the Samsung Service; (iv) any present and probable malfunctions, defects or security problems with the Samsung Service and/or Samsung Devices . The Licensee shall provide reasonable cooperation, at Samsung’s request, to further diagnose and resolve all such problems.
- 2.5 Modifications; Test Version. Samsung may, at any time without notice, extend, enhance or otherwise modify the Samsung Service. If Samsung makes available any Updates, such Updates will be governed by this Agreement (unless a separate license is provided with the Update, in which case the terms of that license will govern the Update). The Licensee acknowledges that Samsung has no obligation, whether express or implied, to announce or make available any Updates, or to provide any maintenance, technical or other supports, in regards to the Samsung Service. Where an Update is made available, such Update may have APIs, features, services and/or functionalities that are different from those found in the Samsung Service as of the Effective Date. The Licensee shall implement an update to its Licensee Services within thirty (30) days of the date such Update is made available and, if required by Samsung, shall pass Samsung's internal test and follow other procedures, in accordance with Section 4. Failure to do so may result in improper functioning of Licensee Services due to incompatibility with an updated Samsung Service. The Licensee is required to periodically check availability of any new Updates on either: (a) the relevant Samsung web portals; or (b) the email address the Licensee submitted to the relevant Samsung web portal for proper function of Licensee Services.
3 Licensee Service Implementation and Launch
- 3.1 Development and Delivery of Licensee Service. The Licensee shall ensure that the design, development, delivery, implementation and operation of the Licensee Service occur in accordance with this Agreement, including but not limited to any and all Documentation.
- 3.2 Program Documentation. The Licensee shall prepare and deliver, or otherwise provide Samsung access to , the technical and functional documentation detailing in all material respects the operations, procedures, specifications and technology for the Licensee Service (the “Program Documentation”). The Licensee shall ensure that the Program Documentation conforms to and is in all respects consistent with any Applicable Laws and is reasonably satisfactory to Samsung.
- 3.3 Change Management. Further, the Licensee will provide written notice to Samsung of any anticipated or potential modifications to the Licensee Service, including but not limited to new or changed features and technical specifications (collectively, the “Material Modifications”) as early as possible and, in any event, at least forty-five (45) days prior to the implementation thereof (or longer, in accordance with the magnitude of the anticipated or potential Material Modifications). For the purposes hereof, by way of example, the following events shall constitute Material Modifications: (i) the addition of Products; (ii) the addition of features or functions (including but not limited to any paid features or functions); (iii) any changes to any consumer disclosures applicable to the Licensee Service or customer experience in a manner that may affect Users’ perception of (a) how Users may access and use Licensee Service through the Samsung Service; or (b) how Licensee or Samsung Processes their data; and/or (iv) any other modification to the Licensee Service that would likely have operational, technical or security repercussions for Samsung. If Samsung has concerns with continuing to operate under this Agreement due to the impact of any such anticipated or potential Material Modification(s), the Parties agree to use good faith efforts to resolve such issue as soon as possible, provided that the implementation of such Material Modification will be possible after the Parties agree on such implementation.
- 3.4 Customer Service. Between Samsung and the Licensee, the Licensee will be responsible for (i) addressing and resolving issues relating to accessing and/or using the Licensee Service and Products; (ii) timely investigating and responding to complaints from Users arising from such issues; and (iii) promptly notifying Samsung of such issue.
4 Intellectual Property Rights
- 4.1 Ownership; Intellectual Property Rights; Third -Party Software
- (a) The Licensee acknowledges and agrees that Samsung or its Affiliates own their Technology and retain all Intellectual Property Rights thereto, including the Samsung Service, Samsung Device, Documentation, Samsung Marks and digital assets and marketing collateral provided by Samsung. Samsung acknowledges and agrees that the Licensee owns its Technology and retains all Intellectual Property Rights thereto, including the Licensee Service, Licensee Marks and digital assets and marketing collateral provided by License.
- (b) Except as expressly set forth in this Agreement, no licenses are granted by either Party to the other with respect to such Party’s Technology. All rights not expressly licensed hereunder are expressly reserved. Nothing in this Agreement restricts, or should be deemed to restrict, either Party’s right to exercise any rights or licenses received from any third parties or to grant other similar rights or licenses to any third parties. Each Party acknowledges that its use of the other Party’s Technology will not create any right, title or interest in or to such Technology.
- 4.2 Brand Marks
- (a) Samsung Marks. During the Term, and subject to the terms and conditions of this Agreement, Samsung hereby grants to the Licensee and its Affiliates a non-exclusive, limited, paid-up, royalty-free, non-transferable, non-sublicensable, non-assignable right and license to use Samsung Marks solely to advertise, market and promote the Licensee’s acceptance of Samsung Service in any and all media (whether known now or developed later). Each use of a Samsung Mark will be subject to Samsung’s prior written approval and in accordance with the then-current brand guidelines of Samsung. Any and all goodwill associated with Samsung Marks that arise in connection with the use hereunder will inure to Samsung’s sole benefit.
- (b) Licensee Marks. During the Term, and subject to the terms and conditions of this Agreement, the Licensee hereby grants to Samsung and its Affiliates a non-exclusive, limited, paid-up, royalty-free, non-transferable, non-sublicensable, non-assignable right and license to use Licensee Marks solely to advertise, market and promote the Licensee’s acceptance of Samsung Service in any and all media (whether known now or developed later). Any and all goodwill associated with Licensee Marks that arise in connection with the use hereunder will inure to the Licensee’s sole benefit.
- (c) Restrictions on Use; Compliance with Applicable Laws; Trademark Notices. Samsung and the Licensee both agree that each use of the other Party’s Marks will at all times be in compliance with applicable law and any trademark or other usage guidelines provided by the other Party, including appropriate trademark notices, as may be required by law or reasonably specified in writing by the other Party. Neither Samsung nor the Licensee shall: (i) take any action inconsistent with the other Party’s ownership of the Marks; (ii) use the other Party’s Marks in a manner that would tarnish, blur or dilute the quality associated with the Marks or the associated goodwill, as determined by the owner of the Marks and at its sole discretion; and (iii) use the other Party’s Marks except as permitted under this Section.
5 Licensee Service Requirements
- 5.1 General. The Licensee acknowledges and agrees that the Licensee Service must satisfy all conditions and requirements as set out in this Agreement (including any Documentation). Prior to distribution, public release or public demonstration of the Licensee Service, the Licensee will follow and complete Samsung’s internal registration procedures, as required by Samsung and at its sole discretion. These procedures may include but are not limited to the Licensee signing up for Samsung web portals and accounts (subject to the terms and conditions applicable thereof), the Licensee’s submission of information regarding itself and the Licensee Service, the Licensee’s agreement to be bound by the terms of any related agreements Samsung may require (“Related Agreements”) and the issuance of an identification number with respect to the Licensee and the Licensee Service.
- 5.2 Testing. Prior to release of a Licensee Service using the Samsung Service, the Licensee will: (i) successfully implement and integrate a live production environment of the Licensee Service into Samsung Service; and (ii) successfully conduct end-to-end testing in accordance with Samsung’s test procedures, if applicable. The Licensee agrees to provide reasonable cooperation to Samsung’s closed testing of the Licensee Service and the integration thereof to the Samsung Service for a period of thirty (30) days prior to the mutually agreed -upon release date. The closed testing will be conducted by the Licensee and Samsung, or as otherwise mutually agreed upon by the Parties.
- 5.3 Service Level. The Licensee Service will: (a) be available and responsive for 99.5% of requests made by Users over a single calendar month; (b) respond within four (4) seconds or less for 99.0% of all requests over a single calendar month. If the Licensee fails to meet any of the foregoing mentioned availability and response service levels (“Service Levels”) (x) twice in any two (2) consecutive months or (y) three (3) times in any six (6) month period, the Licensee agrees that Samsung will be entitled to terminate this Agreement.
- 5.4 Restrictions. The Licensee agrees that Licensee Services will not (i) be used for nuclear energy equipment, air traffic control, the operation of critical communication system, public transportation control, life support devices or other ultra-hazardous uses where failure of the Licensee Service to perform would be reasonably expected to cause deaths, injuries or severe physical property or environmental losses; or (ii) disable, hack or otherwise interfere with any authentication, content protection, digital signing, digital rights management, security or verification mechanisms implemented in Samsung Service or Samsung Devices.
- 6.1 Except for an announcement intended solely for internal distribution or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of the Licensee, all media releases, public announcements or public disclosures by the Licensee or its employees or agents relating to this Agreement or its subject matter, or including the name, trade name, trademark, or symbol of Samsung, are prohibited without the prior written consent of Samsung.
- 6.2 Samsung may include the name, trade name, trademark, symbol of the Licensee, and reference the Licensee Service and Product in all media releases, public announcements or public disclosures by Samsung or its employees or agents relating to this Agreement or its subject matter, without the prior written consent of the Licensee.
7 Suspension or Termination
- 7.1 Suspension or Termination. In order for Samsung to improve the Samsung Service, Samsung may from time to time monitor and investigate the Licensee's use of the Samsung Service. Effective immediately upon notice to the Licensee, Samsung may suspend or terminate the Licensee’s use of Samsung Service if required by Applicable Laws or if Samsung determines in its sole discretion that: (i) the number of API calls generated by the Licensee exceeds the level reasonably notified by Samsung; (ii) the Licensee Service(s) has a vulnerability or security issue or is not in compliance with this Agreement or the Documentation; (iii) the Licensee has failed to implement updates or upgrades necessary to safeguard Users as reasonably notified by Samsung; (iv) in the event of a Data Compromise; (v) if Samsung has reason to believe that the Licensee has breached this Agreement; (vi) the Licensee is in material breach of its obligations under this Agreement; (vii) the Licensee has a receiver or similar party appointed for its property, becomes insolvent, acknowledges its insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, files a petition in bankruptcy or has an involuntary petition in bankruptcy filed against it; (viii) the Licensee violates Applicable Laws; (ix) the Licensee Service or the Samsung Services might infringe a third party's Intellectual Property Rights; (x) Samsung suspends or terminates Samsung Service as a whole or in part; or (xi) for any other reason that would provide Samsung a right of termination under this Agreement.
- 7.2 Effect of Termination. Effective upon termination, each Party will immediately cease representing to the public any affiliation between it and the other Party in connection with the subject matter of this Agreement; and each Party will return to the other Party or destroy (at the other Party’s request) all Confidential Information and Technology of such other Party. All licenses granted by one Party to the other will immediately cease.
- 7.3 Survival. Upon termination or expiration of this Agreement, Section 1 (Definitions), 4.1 (Ownership; Intellectual Property Rights; Third-Party Software), 7.3 (Survival), 8 (Confidential Information), 10 (Representation and Warranties), 11 (Indemnification), 12 (Limitation of Liability), 13 (Disclaimer of Warranty), 14 (General) shall survive any termination or expiration of this Agreement for any reason.
8 Confidential Information
- 8.1 Each Party acknowledges that it may receive the other party’s Confidential Information. “Confidential Information” includes: (a) information that is provided by or on behalf of either Party to the other Party or its agents in connection with Samsung Service or in connection with the transactions contemplated by this Agreement (including information provided prior to the Effective Date in anticipation of the effectuation of this Agreement); (b) information about either Party or its Affiliates, or its respective businesses, customers and employees, that is otherwise obtained by the other Party in connection with Samsung Service or otherwise related to the activities under this Agreement, as per the case, including: (i) information concerning marketing plans, objectives and financial results; (ii) information regarding business systems, methods, processes, financing data, programs and products and the terms and features and tests thereof; (iii) branding guidelines for Marks; and (iv) proprietary technical information, including source codes; (c) the terms of this Agreement; and (d) any marketing plans. “Confidential Information” in all such cases is information not available to the general public or trade information that is marked or identified as 'confidential,' 'proprietary' or with other similar marking at the time of disclosure or that a reasonable person would consider, from the nature of the information and circumstances of disclosure, to be confidential or proprietary to the discloser.
- 8.2 Each Party: (a) shall safeguard the other Party's Confidential Information by reasonable means, using at least the same degree of care as the recipient accords to its own confidential information of like importance, but in no case less than reasonable care; (b) shall not use Confidential Information for any purpose except its performance or enforcement of this Agreement; (c) may disclose Confidential Information to its employees, Affiliates and advisors, but only (i) as necessary to facilitate the Party's performance or enforcement of this Agreement; and (ii) under enforceable obligations to protect such Confidential Information, pursuant to terms and conditions no less protective of disclosure than those contained in this Agreement; and (d) shall not reproduce or copy Confidential Information except to the extent necessary to further the purposes of this Agreement. Neither Samsung nor the Licensee shall disclose any Confidential Information provided or disclosed by the other Party, to any third party, without the prior written consent of the other Party, except as otherwise provided for or authorized in this Section.
- 8.3 A Party may disclose Confidential Information as required by Applicable Law or legal process. Such disclosure shall not be considered to be a breach of this Agreement, as long as the Party required to make such disclosure gives the other Party advance written notice of the disclosures to the extent permitted by Applicable Law, and as soon as practicable. This party, at the other Party’s preference, must either (a) permit the other Party to seek measures to maintain the confidentiality of its Confidential Information; or (b) limit disclosure to information required to be disclosed and take reasonable measures to protect the confidentiality of the Confidential Information to be disclosed. If requested by the other Party, the disclosing Party shall require if reasonable, and request if not, that the recipient cooperate with the other Party’s efforts (at such other Party’s expense) to limit disclosure and protect the confidentiality of such Confidential Information.
- 8.4 If requested by the furnishing Party, within thirty (30) days after the expiration or any termination (and any subsequent wind down) of this Agreement, the receiving Party shall (i) return or destroy, as the furnishing Party may direct, and in the manner reasonably directed by the furnishing Party, all material in any medium that contains, refers to or relates to the furnishing Party's Confidential Information (other than material that is also Confidential Information of the receiving Party); and (ii) retain no copies except, to the extent necessary, one (1) copy solely for compliance with record retention requirements under Applicable Law. Moreover, no Party will be obligated to erase Confidential Information contained in an archived computer system backup made in accordance with such Party's security and/or disaster recovery procedures, as long as such archived copy (A) will eventually be erased or destroyed in the ordinary course of such Party's data processing procedures; and (B) will remain fully subject to the obligations of confidentiality stated herein.
- 8.5 The obligations in this Agreement regarding Confidential Information shall not apply to, and Confidential Information shall not include, information which a receiving Party can demonstrate by documentary evidence (a) was rightfully in its possession prior to receipt from the other Party without restriction on use or disclosure; (b) was independently developed by such Party without reference to the other Party's Confidential Information; (c) is or becomes publicly available, or is within the public domain, in each case through no action or default of such Party or any person to whom it was disclosed by such Party; (d) was disclosed to such Party by a third party without violation of restrictions on its disclosure or use, to the recipient's knowledge; or (e) was communicated by the discloser to an unaffiliated third party on an unrestricted basis.
9 Privacy and Data Compromise
- 9.1 Compliance with Applicable Laws. In regards to the collection, storage, manipulation, use, disclosure, disposal or other action (collectively, “Processing”) involving Personal Information received by the Licensee as a result of or in connection with this Agreement, the Licensee will obtain prior consent therefor from the applicable Users and strictly comply with Applicable Laws. Without limiting the foregoing, the Licensee agrees to take measures to protect Personal Information that are at least as rigorous as those required by Applicable Laws and as appropriate to the nature and sensitivity of the Personal Information it is Processing.
- 9.2 Use Limitation. The Licensee may Process the Personal Information of any User solely to the extent explicitly approved by Samsung and the applicable User, in accordance with Applicable Laws. For the avoidance of doubt, Licensee will not, and will ensure that all of its personnel do not:
- (a) Process any Personal Information for analytics, modeling or generation of revenue for the Licensee (e.g., by reselling such data or using such data for services or product offerings containing aggregated information that are separately priced or sold). For the avoidance of doubt, the Licensee may not engage in analytics, modeling or similar tasks even for wholly internal (not for resale) purposes unless the Parties expressly agree in writing to such Processing in an amendment subsequent to the execution of this Agreement;
- (b) Process any Personal Information to engage in or facilitate targeting (for marketing, advertising or otherwise) of any individual, including targeting due to or based on such individual’s status as a User;
- (c) Except as expressly approved by Samsung, combine any Personal Information with any other data, including Personal Information;
- (d) Attempt to re-identify or otherwise ascertain the identity of any User or another individual;
- (e) Process any Personal Information in a manner that identifies or reveals quantitative or qualitative characteristics attributable to Samsung or the existence of a relationship between a User and Samsung;
- (f) Assign, sell, transfer or otherwise dispose of any Personal Information to any other Persons or permit the use of or access to any Personal Information for the benefit of any other Persons; or
- (g) Attempt to or assist others in an attempt to copy, duplicate or otherwise reproduce, modify or create derivative works based on any Personal Information.
- 9.3 Data Protection Program. The Licensee will protect the confidentiality, integrity and availability of Personal Information through various measures, which will include, at a minimum, the following:
- (b) The Licensee will establish, implement and maintain a comprehensive written information security program containing administrative, physical and technical safeguards designed to: (i) comply with Applicable Laws; and (ii) protect against any anticipated threats or hazards and prevent unauthorized physical or electronic access to, Processing of, or loss of Personal Information or the services, systems or devices containing Personal Information;
- (c) The Licensee will provide an appropriate level of supervision, guidance and training on its safeguards to anyone acting on its behalf who Processes Personal Information;
- (d) The Licensee will maintain controls appropriate to limit access or Processing activities regarding Personal Information to its employees, subcontractors and agents that Process Personal Information on its behalf; and that (i) have a legitimate need to Process that information to provide services pursuant to this Agreement; and (ii) have agreed in writing to be bound by an appropriate confidentiality agreement. The Licensee will also maintain controls to prevent and detect unauthorized access, use or disclosure by unauthorized persons or for unauthorized purposes (including by conducting a periodic manual or automated review for proper access). Such controls will include monitoring of networks, systems and devices and an industry-standard logging system that details all access and is capable of reconstructing the details of access to Personal Information. Such logs will be maintained in accordance with industry-standard retention policies. The Licensee will terminate promptly an individual’s access to Personal Information when such access is no longer required for performance under the Agreement and will retain an auditable history of all access changes. The Licensee will be responsible for containing and remediating any unauthorized access to Personal Information under the Licensee’s custody or control; and
- (e) Upon Samsung or an applicable User's request to delete any Personal Information, the Licensee will immediately delete and render permanently irretrievable such Personal Information from any and all of the services, systems or devices containing such Personal Information.
- 9.4 Data Compromise. The Licensee will maintain an incident response program designed to respond to any Data Compromise. If a Data Compromise has occurred, or if the Licensee has reason to believe that any security measure included in the software or hardware relevant to the Licensee Service has been breached, the Licensee will, subject to Applicable Laws, promptly notify Samsung of the Data Compromise. In the event of such a Data Compromise, the Licensee will: (i) promptly provide Samsung with a detailed description of the incident, the data accessed, a report of any investigation of the Data Compromise and such other information as Samsung reasonably may request; (ii) take all necessary and appropriate corrective actions, at the expense of the Licensee, to prevent a recurrence of such Data Compromise; and (iii) take all remediation efforts required by Applicable Law, or assist Samsung in doing so, at Samsung’s request, as a consequence of any Data Compromise or that have been required by any governmental authority in similar circumstances, regardless of whether Applicable Law explicitly imposes such remediation obligations on the Licensee, or Samsung or on both. Such remediation efforts may include but are not limited to: (a) investigation of such Data Compromise; (b) development and delivery of notices to Users whose Personal Information may have been affected; (c) establishment of a toll-free telephone number (s) (or where not available, a dedicated telephone number or numbers) where affected Users may receive individualized assistance and information relating to the Data Compromise; (d) investigation and resolution of the causes and impacts of the Data Compromise; and (g) such other measures that Samsung determines are reasonable and proportionate to the nature and level of severity of the Data Compromise (with such other measures being referred to as “Additional Reasonable Remediation Measures”). The Licensee shall be solely responsible for the costs and expenses of all remediation measures, whether undertaken by the Licensee or by Samsung. The Licensee agrees that it will not inform or permit any Affiliate, agent or subcontractor to inform, any third party of a Data Compromise without Samsung’s prior written consent . Provided, however, that such disclosure is mandatory under Applicable Law, the Licensee will use commercially reasonable efforts to obtain Samsung’s approval regarding the content of such disclosure to minimize any adverse impact to Samsung.
- 9.5 Survival. The Licensee’s obligations under this Section 8 will survive expiration or termination of the Agreement and completion of the activities thereunder, as long as the Licensee continues to Process the Personal Information of Users.
10 Representations and Warranties
- 10.1 Each Party represents and warrants to the other Party that: (a) it has the authority to enter into this Agreement and the performance of its obligations under this Agreement does not conflict with its obligations under any other agreement; and (b) it shall comply with all applicable laws and regulatory requirements and will obtain and maintain, for the Term, all required permits and licenses for the performance of its obligations under this Agreement.
- 10.2 The Licensee further represents and warrants that: (a) it has all necessary rights, titles and interests in the Licensee Service, including but not limited to all Intellectual Property Rights, to grant the license and other rights under this Agreement; (b) if the Licensee Service includes any third -party materials, the Licensee represents and warrants that the Licensee has obtained the required license or rights to use such third -party materials in the Licensee Service; (c) the Licensee Service is (i) free from material errors and defects; (ii) complies with the Samsung style, standards and technical requirements and guidelines , as communicated to Licensee at all times; and (iii) complies with all applicable laws and regulations including privacy laws; (d) the Licensee Service does not, as determined by Samsung in its sole discretion, include any material which is harmful, inaccurate, pornographic, abusive, obscene, threatening, defamatory, seditious, contrary to public policy, contrary to Samsung policy or encourages illegal activities or promotes software or services which deliver unsolicited emails; (e) no royalties will be payable by Samsung, either directly or indirectly, to any third party for the distribution or use of the Licensee Service in accordance with this Agreement; (f) Samsung's use of the Licensee Service in accordance with this Agreement will not violate the rights of any third party; and (g) the Licensee Service, including any and all subsequent updates, upgrades and maintenance fixes, does not contain any viruses or other computer programming routines that may damage or interfere with any computer or telecommunications network, equipment or electronic devices.
- 11.1 The Licensee agrees to indemnify, defend and hold harmless Samsung, its Affiliates, directors, officers, employees and agents (each a 'Samsung Indemnified Party') from any and all claims, legal proceedings, government tribunal (including any appellate proceedings and government sanctions) (collectively, 'Claims'), losses, liabilities, damages, expenses and costs (including without limitation reasonable attorney fees) (collectively 'Losses') incurred by a Samsung Indemnified Party in connection with the Claims arising from or relating to: (a) the distribution and/or use of the Licensee Service in accordance with this Agreement; (b) Claims alleging that the Licensee Service violates or infringes any Intellectual Property Rights of any third party; (c) a breach by the Licensee of any of its warranties, representations, covenants or obligations hereunder; or (d) the Licensee’s collection, processing, storage and use of User Data.
- 11.2 Where Samsung tenders sole control of the indemnified portion of the claims to the Licensee, the Licensee may, at the Licensee’s expense, assume and direct the defense of such third -party claim and any litigation resulting therefrom, provided that (i) the counsel for the Licensee conducting the defense of such third -party claim shall be reasonably satisfactory to Samsung; and (ii) Samsung may participate in such defense at Samsung’s expense. The Licensee shall not, in the defense of any such third -party claim, consent to entry of any judgment or enter into any settlement that imputes liability or obligation on Samsung, without Samsung’s prior written consent, whose consent shall not be unreasonably withheld. The Licensee and Samsung shall cooperate in the defense of any such third -party claim, solely to the extent Samsung decides to participate in such defense. The records of each Party related to such defense may be made reasonably available to the other Party.
- 11.3 The indemnity obligations hereunder shall apply whether or not legal proceedings are instituted . If such proceedings are instituted, they shall be conducted irrespective of the means, manner or nature of any settlement, compromise or determination.
12 Limitation of Liability.
- SUBJECT TO TERMS AND CONDITIONS OF THIS AGREEMENT AND TO THE FULLEST EXTENT ALLOWED AND PERMITTED BY APPLICABLE LAWS AND REGULATIONS, SAMSUNG SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE LICENSEE OR ANY THIRD PARTY THROUGH LICENSEE FOR PERSONAL INJURY OR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES ARISING FROM OF OR IN RELATION TO THIS AGREEMENT OR THE LICENSEE’S USE OF THE SAMSUNG SERVICE OR THE LICENSEE’S DEVELOPMENT OR DISTRIBUTION THEREOF, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SAMSUNG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THE LICENSEE’S UNDERSTANDING, ACKNOWLEDGEMENT AND ACCEPTANCE OF THIS SECTION IS THE LEGAL BASIS AND CONSIDERATION FOR THE LICENSES GRANTED UNDER THIS AGREEMENT.
13 Disclaimer of Warranty.
- SAMSUNG EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. FURTHER, SAMSUNG DOES NOT REPRESENT OR WARRANT THAT ANY PORTION OF THE SAMSUNG SERVICE IS FREE OF INACCURACIES, ERRORS, BUGS OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, COMPLETE OR OTHERWISE VALID. THE SAMSUNG SERVICE AND DOCUMENTATION ARE PROVIDED 'AS IS', 'WITH ALL FAULT', AND 'AS AVAILABLE', WITHOUT ANY WARRANTY OF ANY KIND FROM SAMSUNG.
- 14.1 Assignment. The Licensee may not assign this Agreement, in whole or in part, without the prior written consent of Samsung. Any attempt to do so without such consent shall be void and of no effect. Samsung may assign this Agreement without the prior written consent of the Licensee. This Agreement shall be binding upon and shall inure to the benefit of the Parties, their respective representatives and permitted successors and assignees.
- 14.2 Relationship of the Parties. This Agreement shall not be interpreted or construed to create any association, agency, partnership, joint venture, fiduciary duty or any other form of legal relationship between the Parties, and the Licensee shall not represent the existence of any such relationship, whether expressly, by implication or otherwise.
- 14.3 Third -Party Rights. This Agreement is made for the benefit of the Parties, and is not intended to benefit any third party or be enforceable by any third party.
- 14.4 Development by Samsung. Nothing in this Agreement limits or otherwise affects Samsung's right to acquire, develop, license, market, promote or distribute any product or technology that competes with a Licensee Service or performs the same or similar functions as a Licensee Service does.
- 14.5 Notices. Any notices required to be served on either Party shall be provided to such Party in writing by personal delivery (notice deemed effective upon receipt), overnight courier, and will be deemed to have been fully given or made when: (a) personally delivered; or (b) three (3) days after being mailed via commercially reputable overnight delivery service, to the following address:
- The Licensee agrees to receive notices and other communications to be made to the Licensee, pursuant to this Agreement, by email . The Licensee agrees that any notices that Samsung sends to the Licensee by email will satisfy any legal communication requirements. A Party may change its email or mailing address by giving the other Party written notice, in accordance with this Section.
- 14.6 No Waiver. Failure by Samsung to insist upon the strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of Samsung’s rights, as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or the right to take action in respect of a subsequent default by the Licensee in the performance of or compliance with any of the terms and conditions set forth in this Agreement.
- 14.7 Remedies. The Licensee acknowledges that the disclosure, use or misappropriation of Samsung’s Confidential Information or in violation of this Agreement would cause Samsung irreparable harm for which there may be no adequate remedy by law. Accordingly, Licensee agrees that Samsung shall have the right to apply to any court of competent jurisdiction for injunctive relief and specific performance, without prejudice to any remedies otherwise available to Samsung by law or in equity.
- 14.8 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea, without reference to provisions on conflicts of law. All disputes, controversies or claims between the Parties arising out of or in connection with this Agreement (including its existence, validity or termination) shall be resolved in accordance with the procedures set out in the Civil Procedure Act of Republic of Korea.
- 14.9 Entire Agreement. Except as expressly set forth in this Agreement, this Agreement contains the entire agreement between the Parties with respect to the use of the Samsung Service (excluding any services which Samsung may provide to you under a separate written agreement) licensed hereunder and supersedes all existing agreements and all other oral, written or other communications between the Parties concerning this subject matter. All content not specified in this Agreement is governed by SmartThings Developer TnC, and in case of any conflict between SmartThings Developer TnC and this Agreement, SmartThings Developer TnC shall prevail. If any provision of this Agreement (or any portion thereof) is invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of this Agreement shall not be affected or impaired.
|Service Biz. Strategy Group,Service Biz.||-|
|Team, Mobile Communications Business, Samsung Electronics||-|