SAMSUNG ARTIK CLOUD™ Platform Terms of Service
Last Updated: November 18, 2016
Welcome to the SAMSUNG ARTIK CLOUD™ Platform (the "Platform"). Samsung Semiconductor, Inc., together with any of its affiliates / affiliates that license materials for the Platform (collectively, "Samsung", "we", "us" or "our") provides certain features, software, tools, and other products and services ("Services") to you as an individual or an authorized representative of a corporation or other entity ("you" or "your") on or through our Platform. You represent and warrant that (a) you have the full legal authority to enter this agreement or bind you or your organization to these Terms of Service (in which case, "you" or "your" will refer to that organization), (b) that you are of the legal age of majority in the jurisdiction in which you reside (at least 18 years of age in many countries); (c) you have read and understand these Terms of Service; and (d) you agree, on behalf of yourself or your organization that you represent, to be bound by these Terms of Service. If you do not have the legal authority to agree to these Terms of Service, or bind your organization, please do not click the "I Agree" button below. These Terms of Service governs you or your organization's access to and use of the Platform and Services.
Please read these Terms of Service carefully. They are a legal agreement between you and us that governs your use of the Platform. By using the Platform or the Services, you are agreeing to these Terms of Service. If you do not agree to these Terms of Service, please do not click the "I Agree" button below or use the Platform or any of the Services.
1. You Retain Ownership of your Content. As between you and Samsung, you retain ownership of the information, materials, documents, media files or other data or content that you or your End Users (defined in Section 6.2 below) upload, transmit, create, post, display or otherwise provide on or through the Services ("User Content"). Other than the rights you grant to Samsung under these Terms of Service, Samsung does not claim ownership of or any other rights to the User Content, and you retain ownership of any intellectual property rights that you hold in the User Content. In other words, the User Content that belongs to you remains yours.
2. Privacy and Protection of Personal Data.
3. Other Applicable Terms. We offer a variety of Services, and you may use the Services to locate, browse and/or download applications, data files, services and other content, that may be offered by third parties that are not affiliated with Samsung (collectively, "Third Party Products"). We may require you to agree to additional terms of service ("Special Terms") for some of our Services or if you use our Services in combination with some Third Party Products. If you use any Services or Third Party Products that require Special Terms, you will need to agree to those Special Terms. If any Special Terms are inconsistent with these Terms of Service, the Special Terms will control with regard to the Third Party Products.
4. Account and Registration Data.
4.1 To use the Services, you will need to register and open an account. You may create an account using (1) SAMSUNG ARTIK CLOUD's sign on process ("ARTIK Account") or (2) Samsung's single sign on process ("SingleSignOn"). The ARTIK Account will only permit you to access the Services. By contrast, SingleSignOn automatically registers you for all Samsung services, and you can sign on and sign off from all Samsung services and through all devices at once.
4.2 You can access and change your password or registration data at any time by either accessing the relevant Samsung account application on your device or by visiting artik.cloud.
4.3 You will keep your account safe and secure at all times, in particular by avoiding obvious user names or passwords, and by changing your password regularly.
4.4 You are entirely responsible for maintaining the confidentiality of your user name and password and for any and all activity that occurs under your account, so you should not disclose your password(s) or grant any third party access to your account. Samsung may treat any instructions as coming from you if they are received from or issued by a third party using your user name and password or registration data.
4.5 You agree not to use the account of any other user without permission of the user or person holding the respective account.
4.6 You will let us know immediately if you learn of any unauthorized use of any of your account or registration data or any other breach of security.
5. Closing Your Account.
5.1 You may close your account at any time.
5.2 Samsung may also disable your account at any time and without notice if:
(a) We believe that you are in breach of these Terms of Service.
(b) You have demonstrated (whether directly or through your actions or statements or otherwise) that you do not intend to comply with these Terms of Service;
(c) If your End Users are using the Services in a manner that is inconsistent with these Terms of Service;
(d) We or any of our suppliers or partners believe the law requires us to do so; or
(e) We decide to stop providing the Services.
5.3 Terminating this Agreement will not prejudice any rights, obligations and liabilities that you or Samsung have accrued or incurred while these Terms of Service were in effect.
5.4 If Samsung disables access to your account or terminates your account or Services, you may not be able to access or use the Services, your account details or any files, including the User Content, or Third Party Products that are stored with your account. Samsung may allow you to back up the User Content that you have stored with Samsung through the use of the Services. You understand that Samsung may delete the User Content or may retain the User Content in accordance with Samsung's current service and pricing information is available at https://www.artik.cloud/pricing.
6. Your Responsibilities.
6.1 You are solely responsible for development, content, operation, maintenance and use of any software, hardware or other product or service created by you or on your behalf for use with the Services ("Product(s)").
6.2 You are solely responsible for providing customer service to any person or entity other than you that uses one or more Products ("End Users").
6.3 You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to these Terms of Service, User Content or use of the Services. You are responsible for End Users' use of User Content and the Services. You will ensure that all End Users comply with your obligations under these Terms of Service and that the terms of your agreement with each End User are consistent with these Terms of Service. If you become aware of any violation of your obligations under this Agreement by an End User, you will immediately terminate such End User's access to User Content and the Services.
7. Use of the Services; Limitations on Use of the Services.
7.1 Subject to the terms and conditions of these Terms of Service, Samsung grants you a non-exclusive, non-transferable, worldwide, revocable license to use the Platform and Services, allow your End Users to use the Services in connection with their use of your Products, and integrate the Services into any Product that has material value independent of the Services.
7.2 You and your End Users may not (a) reproduce, duplicate, copy, sell, trade or resell any of the Services or parts of the Services, (b) remove any proprietary notice language corresponding to the Services, or (c) modify, alter, tamper with, repair, or otherwise create derivative works of any software included in the Services (except to the extent software included in the Services are provided to you under a separate license that expressly permits the creation of derivative works), (d) reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services, or (e) access or use the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas. All licenses granted to you in this Agreement are conditioned on your continued compliance with this Agreement, and will immediately and automatically terminate if you do not comply with any term or condition of this Agreement. During and after the Term, you will not assert, nor will you authorize, assist, or encourage any third party to assert, against us or any of our affiliates, customers, vendors, business partners, or licensors, any patent infringement or other intellectual property infringement claim regarding any Services you have used.
7.3 You will only use or attempt to use the Services through the interface Samsung provides to you.
7.4 You will comply with and follow all instructions that Samsung provides in connection with the Services.
7.5 You will not use other unauthorized or illegitimate means to access or attempt to access any portion or feature of the Services, or any other systems or networks connected to the Services or to any Samsung server, or to any of the services offered on or through the Services, including by hacking automated tools (including software and/or hardware), functions, services or otherwise (including scripts or web crawlers).
7.6 You will always comply with these Terms of Service and any applicable law or regulation that applies to your use of the Services, including the laws and regulations of the place where you access the Services and/or the place where you live.
7.7 You will not engage in any activity that may interfere with or disrupt the Services or any servers, networks or other equipment connected to the Services.
7.8 You understand that if you use any Services over a mobile network, your network provider may charge you for access to its network, the duration of your mobile phone, mobile device, or other device's connection to the network and the data volume used to use the Services or Third Party Products. You are entirely responsible for such costs.
8.1 Various payment processing methods may be available for the purchase of any Services or Third Party Products, other than those Services or Third Party Products provided at no charge. Current service and pricing information is available at https://www.artik.cloud/pricing.
8.2 You agree to abide by any relevant terms and conditions or other legal agreement, whether with Samsung or a third party, that governs your use of a given payment processing method.
8.3 Samsung may add or remove payment processing methods at any time, with or without notice.
8.4 Any purchased Services will be terminated if you do not pay for those Services or you change the Services to a Service that Samsung provides free of charge.
8.5 Samsung uses the third party payment service provider, Stripe, Inc. ("Stripe") to process credit and debit card transactions for your access to the Services. By using the Services and agreeing to these Terms of Service, you also agree to be bound by Stripe's Terms of Service, which are available at https://stripe.com/terms . You hereby consent and authorize Samsung and Stripe to share any information and payment instructions you provide with third party service provider(s) to the minimum extent required to complete your transactions. You are responsible for all transactions (one-time, recurring, and refunds) processed through Stripe. Samsung is not liable for loss or damage from errant or invalid transactions processed by Stripe. This includes transactions that were not processed due to a network communication error, or any other reason. If you process a transaction, it is your responsibility to verify that the transaction was successfully processed. You understand and agree to not hold Samsung liable for any adverse effects that actions (whether intentional or unintentional) on the part of Stripe may cause to your Samsung account, or your business.
8.6 Your total price will include any applicable sales tax. All sales are final.
8.7 You are responsible for the timely payment of all products and services you purchase through your account, whether from Samsung or a third party. All fees will be billed to the credit card or payment processing account you designate during the registration process. You must make any changes to your payment method online.
8.8 Prices for any products and services offered via the Services, whether from Samsung or a Third Party, may change at any time, and the Services do not provide price protection or refunds even if there is a price reduction or promotional offering.
8.9 If a Third Party Product becomes unavailable after a transaction but before you download or receive the Third Party Product, your sole and exclusive remedy is a refund. If technical problems prevent or unreasonably delay delivery of your Third Party Product, your sole and exclusive remedy is either replacement or refund of the price paid, as determined by Samsung.
9. Samsung's Rights to Change or Stop Any Services.
9.1 Although we strive to keep you updated and informed of our current and upcoming Services, Samsung may at any time, with or without notice:
(a) change, suspend or stop providing or offering the Services or any part of the Services (either worldwide or in the country where you are a resident or from where you are using the Services);
(b) disable or suspend your use of the Services including access to your account(s) and any files or other content contained in your account(s) either temporarily or permanently;
(c) limit the number of transmissions you may send or receive through the Services or on the amount of storage space allocated to the Services or any part of the Services;
(d) prescreen, review, flag, filter, modify, refuse, reject, block access to or remove any or all content, including User Content, from the Services; or
(e) remove your access to any Third Party Product accessible through the Services that Samsung discovers violates the legal agreements developers enter into with Samsung, or violates any other agreements or applicable laws or regulations. Samsung may remove any such Third Party Product from your device remotely.
10. How Samsung May Change These Terms of Service.
10.1 Samsung may modify, update, add to, discontinue, remove or otherwise change any portion of these Terms of Service at any time and may require you to accept new or updated Terms of Service as a condition of your continued use of the Platform, or may otherwise notify you of changes through the Platform.
10.2 When Samsung amends these Terms of Service, we will revise the "Last Updated" date located at the top of these Terms of Service. For changes that we consider to be material, we will place a notice on the Platform by revising the link on the homepage for a reasonable amount of time. The link will say something like "Updated Terms of Service." If you provide information to us or access or use any Services in any way after these Terms of Service have been changed, you will be deemed to have unconditionally consented and agreed to such changes. The most current version of these Terms of Service will be available on the Platform and will supersede all previous versions.
11. Software and Software Updates and Updates to the Services. Services originating from Samsung or the Services may communicate with Samsung servers from time to time to check for available updates, such as bug fixes, patches, enhanced functions, missing plug-ins and new versions (collectively, "Software Updates"). By using or installing these Services and/or Third Party Products, you agree to such automatically requested and installed Software Updates. These Software Updates may be in various forms and are generally provided for the purposes of improving the performance, security and reliability of the Services or Third Party Product or the device you use to access the Services.
12. Content Provided in or through the Services and Content Rights.
12.1 All content available in or through the Services or accessible as part of or by the use of the Services (including audio and sound files, data files, images, music, photographs, software, videos and written text) ("Content") is entirely the responsibility of the originator of such Content. The Content may include, without limitation, advertisements, promotional material, sponsored elements or other material.
12.2 The Content may be protected by proprietary or intellectual property rights of third parties (such as partners, advertisers and sponsors or their agents who provide Content to Samsung). You are not permitted to modify, rent, lease, loan, sell, distribute or create derivative works based on any Content (either in whole or in part) or to grant licenses to the Content.
12.3 Using the Services exposes you to the risk that you may find some Content offensive, indecent or objectionable and any use of the Services is entirely at your own risk.
13. User Content and User Content License.
13.1 You represent that you have sufficient rights to the User Content to grant us the User Content License below, and that the User Content does not violate or infringe anyone's intellectual property or other rights.
13.2 You hereby grant Samsung a worldwide, royalty-free, fully paid up, non-exclusive license to copy, reproduce, adapt, modify, edit, distribute, translate, digitize, publish, and otherwise use the User Content ("User Content License") to the full extent necessary to provide the Services.
13.3 The User Content License includes a right for Samsung to (a) perform all technical steps necessary to process and prepare the User Content for use in the Services, including any modification and/or adaption required to provide the Services to you or users generally and/or to transmit or distribute the User Content over public networks and in media and (b) make available and sublicense the User Content to third parties for the use of the User Content in connection with the provision of Services by these third parties.
13.4 In addition, we may use the User Content, including but not limited to, in an aggregate, non-identifying manner to create or to have a third party create statistical data for internal or business purposes. We agree that we will not disclose any such data or information in a manner that would reveal your identity or the identity of your End Users, or otherwise allow a third party to identify you, your End Users or the User Content, unless ordered to do so by a Court of competent jurisdiction.
13.5 You are responsible for protecting and enforcing any intellectual property rights you have in the User Content. Samsung is not obliged to protect or enforce any intellectual property rights you have in the User Content on your behalf.
13.6 If you send or post certain specific submissions at our request or if you send us any unsolicited creative suggestions, ideas, notes, photographs, drawings, concepts, or any other information (the "Submissions"), your Submissions will be treated as non-confidential and non-proprietary. "Submissions" are separate and apart from User Content. You grant us the right to use any Submission without restriction and for any purpose without compensation or attribution to you, and you hereby irrevocably waive, release and give up any claim that any use of such Submission violates any of your rights related to such Submissions. Samsung will not be liable for any use or disclosure of any Submissions. You represent that such Submission is original with you and does not violate or infringe upon the rights of any third parties, including, without limitation, any intellectual property rights or rights of publicity and/or privacy.
14. Samsung Services License.
14.1 As between you and Samsung, Samsung owns all right, title and interest in and to the Platform and Services, including without limitation all applicable intellectual property rights or other proprietary rights in the Platform and such Services, regardless of whether registered/legally secured or not.
14.2 Except for the rights granted to you in these Terms of Service and any Special Terms, Samsung retains all rights in and to the Platform and the Services.
14.3 Except as otherwise provided in these Terms of Service, you are not permitted to (a) grant any third party a license to use the Platform and Services or otherwise to access your account or the Services, (b) use the Services to provide services to any third parties or (c) otherwise assign, grant a sublicense in, or grant a security interest in or over any of the rights granted to you in these Terms of Service, loan or lease the Services and/or otherwise transfer any such rights to any third party.
14.4 You may not copy, edit, modify, alter or create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Platform or Services (or any part of the Platform or Services), unless expressly permitted by Samsung in writing, or to the extent permitted under the laws applicable to you, and you will not permit or grant a license to any third party to do so.
14.5 You and your End Users shall not use the Services for life support systems, critical care applications, human implantation, commercial aviation, nuclear facilities or systems or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage, or any military or defense application, or any governmental procurement to which special terms or provisions may apply (e.g. FARS, DFARS, etc.).
15.1 You may not use any of Samsung's trade names, trademarks, service marks, logos, domain names, or other distinctive brand features without obtaining advance written consent from Samsung.
15.2 You may not remove, obscure, conceal, modify or otherwise change any proprietary rights notices, signs, trademarks, service marks, trade names, logos or other marks of Samsung or any third party (including copyright and trademark notices) (the "Marks") that pertain to, are affixed to or which are contained within the Services and you agree not to use any such Marks in a way that may confuse or mislead others about the owner, license holder or authorized user of such Marks.
16. Your Warranties and Representations.
16.1 You will obtain and maintain any required consents to allow the processing of all User Content;
16.2 You are and will be responsible for your End Users' use of the Services in connection with your Products;
16.3 Your Products (a) are free from material errors and defects; and (b) will operate with the Platform;
16.4 Your Products do not and will not infringe the intellectual property rights, or other proprietary rights of any third party;
16.5 You are entirely responsible for the User Content provided by you and for any consequences arising in connection with that User Content (including any loss or damage suffered or incurred by Samsung). In particular, you warrant and represent to Samsung that:
(a) You own all rights pertaining to the User Content or are otherwise authorized to grant Samsung the User Content License;
(b) The User Content does not and will not infringe any intellectual property or other third party rights;
(c) The User Content does not and will not contain any material that is harmful, inaccurate, pornographic, abusive, obscene, threatening, defamatory, or that is otherwise illegal or that does not comply with applicable law or any content guidelines provided by Samsung;
(d) The User Content does not and will not contain any viruses or other harmful software, code or similar means and devices which could damage, harm, disable or otherwise impact or limit the function and performance of the Services and/or any device accessing such User Content, including without limit servers, network nodes or any similar equipment;
(e) The User Content will comply and conform to any age classification rules and requirements (including accurate and adequate classification and rating of any User Content, as the case may be) under the laws of any country, including the country in which you are a resident or from which you are using the Services; and
(f) The use of the User Content by Samsung or Third Party Products will not require Samsung to pay any kind of monetary contribution (including license fees, dues or otherwise) to any third party.
(g) The Services will not be used for life support systems, critical care applications, human implantation, commercial aviation, nuclear facilities or systems or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage, or any military or defense application, or any governmental procurement to which special terms or provisions may apply (e.g. FARS, DFARS, etc.). You shall include these restrictions as a condition on use of the Services in any agreement with any End User of yours.
17. Third Party Products.
17.1 Samsung is not responsible for and has no control over the content (including advertisements, products and other materials) on or through Third Party Products or any links to third party websites and is not liable for any damage or loss incurred by you due to or as a result of the content (including any reliance by you on the availability, accuracy, applicability or completeness of the content) from these Third Party Products or third party websites.
17.2 This Agreement does not affect your legal relationship with any third party and Samsung is not liable or responsible for any services, goods or software provided to you by any third party.
18.1 You agree to indemnify and hold harmless Samsung and our affiliates and licensors, and each of our and their respective employees, officers, directors, and representatives from any loss, damage, liability or expense incurred by Samsung as a result of (a) your or any End Users' use of the Services (including any activities under your account and use by your employees and personnel); (b) breach of these Terms of Service or violation of applicable law by you or any End User; (c) User Content or the combination of User Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by User Content or by the use, development, design, production, advertising or marketing of User Content; or (d) a dispute between you and any End User. If we or our affiliates are obligated to respond to a third party subpoena or other compulsory legal order or process described above, you will also reimburse us for reasonable attorney's fees, as well as our employees' and contractors' time and materials spent responding to the third party subpoena or other compulsory legal order or process at our then-current hourly rates.
18.2 We will promptly notify you of any claim subject to Section 18.1, but our failure to promptly notify you will only affect your obligations under Section 18.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
19. Samsung's Warranties and Representations.
19.1 EXCEPT AS OTHERWISE SET FORTH IN THESE TERMS OF SERVICE, THE PLATFORM, THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY UPDATES, FROM SAMSUNG ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND SAMSUNG MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SERVICES AND 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, TITLE OR NON-INFRINGEMENT. YOUR USE OF THE PLATFORM AND SERVICES IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF THE SERVICES INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO PRODUCTS, YOUR OR YOUR END USERS' COMPUTER SYSTEM, HARDWARE, SOFTWARE OR LOSS OF DATA.
20. Your Liability.
20.1 You are entirely responsible for any breach of your obligations under:
(a) These Terms of Service; and
(b) Any applicable law or regulation in the relevant jurisdictions, including the jurisdiction where you are a resident or from where you are using the services and for the consequences of any such breach, including any loss or damage which Samsung or any third party may incur or suffer. Samsung will have no responsibility to you or to any third party, including but not limited to End Users, in respect of such breach.
21. Samsung's Liability. SUBJECT TO THE TERMS AND CONDITIONS OF THESE TERMS OF SERVICE AND TO THE FULLEST EXTENT ALLOWED AND PERMITTED BY APPLICABLE LAWS AND REGULATIONS, SAMSUNG SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY THIRD PARTY, INCLUDING BUT NOT LIMITED TO END USERS, THROUGH YOU FOR PERSONAL INJURY OR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR DELAY OF DELIVERY, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, YOUR OR YOUR END USERS' USE OF THE PLATFORM OR SERVICES, ANY THIRD PARTY PRODUCTS OR OTHER PRODUCTS OR SERVICES PROVIDED BY OR THROUGH SAMSUNG UNDER THIS AGREEMENT, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SAMSUNG HAS BEEN ADVISED OF OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. YOUR UNDERSTANDING, ACKNOWLEDGEMENT AND ACCEPTANCE OF THESE TERMS OF SERVICE ARE THE LEGAL BASIS AND CONSIDERATION FOR THE LICENSES GRANTED UNDER IT. In no event shall Samsung's total liability to you under these Terms of Service for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the greater of (a) fifty dollars ($50.00) (b) amounts paid by you to Samsung during the preceding twelve (12) months but in no event shall such amount exceed one thousand dollars ($1000).
22. Language of this Agreement. Samsung may provide you with a translation of the English version of these Terms of Service. Such translation is provided for your convenience only. If there is any conflict between the English language version and the translation version of these Terms of Service, to the extent permissible by applicable law, the English language version takes precedence.
23. Procedure for Making Claims and Notices Regarding Infringement of Intellectual Property Rights and Other Rights.
23.1 Samsung may respond to notices of alleged copyright infringement or violation of other laws in accordance with applicable law and may terminate, suspend or block access (either temporary or permanently) to accounts of Users who repeatedly infringe copyright laws or violate other applicable law.
23.2 Any notices regarding any copyright infringement or violation of other laws by the Services, any content provided with or displayed in the Services, or any User Content should be sent to firstname.lastname@example.org.
24. General Provisions.
24.1 Samsung will rely only on the written Terms of Service. Any representations, statements or agreements made or entered into elsewhere, whether directly or indirectly, written or oral or in advertising are not binding on Samsung unless expressly confirmed in writing by Samsung to you.
24.2 Samsung may provide you with notices (including notices relating to changes to the Agreement or termination of the Services or parts thereof) by email, ordinary mail, or postings on or via the Services.
24.3 Failure by Samsung to exercise or enforce any legal right or remedy under these Terms of Service or which Samsung has the benefit of under any applicable law will not constitute or be construed as a waiver of Samsung's rights or remedies.
24.4 If any provision of these Terms of Service is held to be invalid, illegal or unenforceable (in whole or in part) as determined by a court of competent jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired.
24.5 You may not transfer, assign or otherwise dispose of these Terms of Service or any of your rights or obligations arising under these Terms of Service without the prior written consent of Samsung.
24.6 These Terms of Service shall be governed by and construed in accordance with the laws of the State of California, USA, excepting California rules regarding conflict-of-laws rules and excepting the California Arbitration Act (Cal. Civ. Proc. Code §§ 1280-1294.2). All disputes, controversies or claims between the parties arising out of or in connection with these Terms of Service (including its existence, validity or termination) will be finally resolved by arbitration to be held in Santa Clara, California and conducted in English under the Rules of Arbitration of the International Chamber of Commerce. The arbitral award shall be final and binding on the parties. Except to the extent entry of judgment and any subsequent enforcement may require disclosure, all matters relating to the arbitration, including the award, shall be held in confidence. Regardless of arbitration requirement above, you and Samsung may enforce your and our respective intellectual property rights in any court of competent jurisdiction, including but not limited to equitable relief.
Last Updated: April 27, 2016
Thank you for your interest in the SAMSUNG ARTIK CLOUD™ Platform Developer License. Samsung is offering software, development tools, specifications and other products and services for the development of products and services that are compatible with the SAMSUNG ARTIK CLOUD™ Platform to you, as an individual or an authorized representative of a corporate or other entity ("you" or "your"), so long as you (a) agree to be bound by this Developer License Agreement (the "Agreement"); (b) represent that you are of the legal age of majority in the jurisdiction in which you reside (at least 18 years of age in many countries); and (c) have the right and authority to enter into this agreement on your own behalf, or if you are entering into this agreement on behalf of a corporate or other entity, you have the authority to bind the entity that you represent. "Samsung", "we", "us" or "our" means Samsung Semiconductor, Inc., together with any subsidiaries and/or affiliates that license materials for the SAMSUNG ARTIK CLOUD ™ Platform.
1. How to Accept this Developer License Agreement
1.1 Acceptance of the Agreement. The Software Developer Kit is available through the SAMSUNG ARTIK CLOUD™ Platform and this Agreement supplements and is in addition to the SAMSUNG ARTIK CLOUD ™ Platform Terms of Service. If any terms and conditions of this Agreement conflict with the SAMSUNG ARTIK CLOUD ™ Platform Terms of Service, this Agreement will control. Please read all of these terms and conditions carefully. This Agreement is a binding legal agreement between you and Samsung. If you agree to all of the terms and conditions in this Agreement, you can accept this Agreement by clicking on the "I Agree" button, if available, or installing, copying or otherwise using the Software Developer Kit. If you do not agree to the terms and conditions of this Agreement, do not click on the "I Agree" button and do not install, copy or use the Software Developer Kit.
1.2 Term of the Agreement. This Agreement is effective from the date of your acceptance until you or we terminate it in accordance with the termination provisions of this Agreement ("Term").
1.3 Changes to the Agreement. We may also update this Agreement from time to time, so it is important that you check back often for updates. If we think any of the changes are material, we will let you know by placing information on the Software Developer Kit website. The most current version of this Agreement will always be available on https://artik.cloud/terms-service.html. You can check the "Last Updated" date posted at the top to see when this Agreement was last updated. By accessing or using our Services after we have placed such a notice, you consent to the new practice(s) identified in the update.
2. Other Applicable Terms and Conditions
Our Software Developer Kit contains some components that are proprietary to Samsung. Those components are subject to the terms and conditions of this Agreement. Other components of our Software Developer Kit may be distributed to you under a separate license, including Open Source Software licenses (each separate license is a "Separate Component License"). If you use any components of the Software Developer Kit that are subject to a Separate Component License, you will need to agree to that Separate Component License for those components. If the terms of any Separate Component License are inconsistent with this Agreement, the Separate Component License terms will control. We will label the components of the Software Developer Kit, so that you will be able to identify any components subject to a Separate Component License (including the applicable Separate Component License).
In this Agreement, when capitalized:
3.1 "Authorized Users" means your employees or other authorized contractors or agents who have written and binding agreements with you to protect the unauthorized use and disclosure of Samsung's and other third party Confidential Information (to the extent they will have access to such Confidential Information).
3.2 "Software Developer Kit" means all Platform-related software, documentation, and other materials provided to you by or on behalf of Samsung.
3.3 "Developer Product(s)" means any software, hardware or other product or service created by you or on your behalf using the Software Developer Kit.
3.4 "End User" means any person or entity other than an Authorized User or the Developer that uses one or more Developer Products.
3.6 "Platform" means the Samsung data interoperability platform for the Internet of Things that is currently known as SAMSUNG ARTIK CLOUD ™ (formerly known as SAMIIO). The Platform allows you to develop cloud-based Developer Products.
3.7 "Third Party Software" means 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; or
- (b) any software placed in the public domain and accessible to anyone without any specific license terms attached thereto; or
- (c) 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
- (d) any Open Source Software.
3.8 "Update(s)" means bug fixes, enhancements, modifications, new releases, new versions, supplements, updates, or upgrades to the Software Developer Kit.
4. Your Licenses to Use the Software Developer Kit and Its Components
4.1 Software Developer Kit Components. The Software Developer Kit contains proprietary components (consisting of closed source components and reference source components), and Open Source Software components, as further described below:
- (a) Closed Source Components. The closed source components of the Software Developer Kit are those Samsung-proprietary components that you may reference as you create a Developer Product, and are subject to the license granted by Samsung in Section 4.2 ("Proprietary Components").
- (b) Open Source Software Components. The Open Source Software components or those components of the Software Developer Kit that Samsung is making available in accordance with the Apache v2 license (which you may view at http://www.apache.org/licenses/LICENSE-2.0), or any other Open Source Software that Samsung may make available in accordance with the terms of such Open Source Software license terms.
4.2 License to the Software Developer Kit. As long as you comply with the provisions of this Agreement, Samsung hereby grants you and your Authorized Users a worldwide, non-exclusive, revocable, non-sublicensable (except as set forth herein) and non-transferable license during the Term to:
- (a) use and reproduce the Software Developer Kit internally to develop one or more Developer Products for use with the Platform;
- (b) create derivative works of the Software Developer Kit as part of Developer Products that add significant and primary functionality to the Software Developer Kit;
- (c) reproduce and distribute the Software Developer Kit as a component of a Developer Product solely to the extent necessary for End Users to use and operate Developer Products with the Platform; and
- (d) allow End Users to use, perform and display the Software Developer Kit solely to the extent necessary for End Users to use and operate Developer Products with the Platform.
4.3 Technical Specifications. Samsung may require your Developer Product to satisfy certain technical standards, as set forth in the relevant documentation provided with the Software Developer Kit.
4.4 Proprietary Notices. You must ensure that the Samsung copyright disclaimers and other proprietary notices that appear in the Software Developer Kit are retained and reproduced in full (i) in all copies of the Software Developer Kit that you make, as permitted under this Agreement, and (ii) in all instances of Developer Products, as may be required by documentation that is that is provided with the Software Developer Kit.
4.5 Your Responsibilities. Except as otherwise allowed under this Agreement (which includes those rights to use the Software Developer Kit for or with your Developer Product granted to you under this Section 4), you must not, directly or indirectly, (i) sell, redistribute, rent, lease, lend or sublicense all or any part of the Software Developer Kit, or enable or allow others to do such things, (ii) copy, modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the Software Developer Kit or any part thereof, or enable or allow others to do such things, or (iii) use the Software Developer Kit to create any products or services that can be used or operate without the Platform. These restrictions apply except as prohibited by applicable law and only to the extent of that prohibition.
4.6 Limited License. Except as expressly granted in this Section, Samsung does not grant you a license under any Samsung patent, copyright, trademark or other intellectual property rights.
4.7 Use of Trademarks and Logos. Other than the rights we grant to you in this Agreement, you will not use any trademarks, trade dress or other marks belonging or licensed to Samsung in any way unless we authorize that use in writing. You agree that all goodwill arising out of your authorized use of Samsung's marks shall inure to the benefit of and belong to Samsung.
4.8 Limitation on Developer Products. The Software Developer Kit is not intended for use in medical, life saving, life sustaining applications. The License granted in Section 2 does not grant you a license to use, reproduce, create derivative works from, distribute, perform or display the Software Developer Kit to create, use, or operate any Developer Product for use in life support systems, critical care applications, human implantation, commercial aviation, nuclear facilities or systems or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage, or any military or defense application, or any governmental procurement to which special terms or provisions may apply (e.g. FARS, DFARS, etc.).
5. Our Use of Data and Developer Products
5.1 Samsung's Use of Developer Products. You hereby grant Samsung and its affiliates, during the Term, a worldwide, royalty-free and fully paid up, non-exclusive license, without rights to sublicense, to use, reproduce, distribute, perform, or display Developer Products for the purpose of developing, modifying, marketing, promoting, sponsoring or otherwise commercializing the Platform.
5.2 Collection and Use of Personal and Non-Personal Data.
- (b) You agree that Samsung and its affiliates may collect and use technical and related information that is gathered periodically, including but not limited to information about your Developer Products, and your and your Authorized Users' and End Users' computers, system software, other software and peripherals. Samsung may use this information, as long as it is in a form that does not personally identify you, your Authorized Users or End Users to improve the Software Developer Kit, to provide services, if any, related to the Software Developer Kit, verify compliance with this Agreement or for other business purposes. You agree to obtain all consents from the users of your Developer Products necessary for Samsung to use this information.
- (c) If you receive any Personal Information of customers who use the Platform, you agree to ensure the reliability of your employees and other staff who have access to such Personal Information and shall only act on instructions of Samsung in relation to the use of such Personal Information. You shall take all appropriate technical and organizational security measures to protect the Personal Information against unauthorized access, use, damage, destruction, deletion or loss and shall undertake such security measures reasonably requested by Samsung from time to time. You shall not transfer (directly or indirectly) or provide or facilitate access to any Personal Information of customers of the Platform outside the United States other than to a European Economic Area country without Samsung’s express prior written consent.
6. Ownership of Intellectual Property
6.1 Samsung Intellectual Property. Except for the limited licenses granted to you in this Agreement, all rights, title, and interest in and to the Software Developer Kit, Confidential Information, Platform and any Updates that are made available to you under this Agreement, including but not limited to all related changes, improvements, derivative works and intellectual property rights ("Samsung IP") remain, at all times, the sole and exclusive property of Samsung. You agree to cooperate with Samsung to maintain Samsung's ownership of the Samsung IP, and you agree to promptly provide notice of any claims or threatened claims relating to the Samsung IP. Other than the license rights expressly set out in this Agreement, Samsung does not grant to you and you do not receive, whether by implication, estoppel or otherwise, any ownership right, title or interest nor any security interest or other interest in any intellectual property rights relating to the Software Developer Kit, nor in any copy of any part of the foregoing, nor any other licenses, immunity or rights, express or implied.
6.2 Your Intellectual Property. Except for the rights granted to Samsung in this Agreement, you and your licensors retain all right, title and interest in the Developer Products. Except for the Samsung IP, you may, subject to the terms of this Agreement, use, disclose, reproduce, distribute or otherwise exploit any ideas, suggestions or other feedback Samsung provides to you or your licensors regarding any Developer Product.
7. Our Rights and Obligations Under this Agreement
7.1 Updates and Maintenance. Samsung expects to support and improve the Platform and Software Developer Kit over time. In order to do this, we may extend, enhance, or otherwise modify the Software Developer Kit, with or without notice. If Samsung makes any Updates available, those Updates will be governed by this Agreement—except that if a separate license is provided with the Update, then the terms of that license will govern the Update. Any updates may have APIs, features, services and/or functionality that are different from those found in the Software Developer Kit licensed under this Agreement. You are solely responsible for ensuring that your Developer Product functions properly after any such Update. You acknowledge that we have no obligation to provide any maintenance, technical or other support in respect of the Software Developer Kit.
7.2 Test Kits. From time to time, we may offer you test versions of the Software Developer Kit. You acknowledge and agree that (i) you must not rely on such test versions to perform in the same manner as a final-release commercial-grade product, (ii) you will not use such test versions in commercial versions of Developer Products and (iii) you should not use such test versions with data that is not sufficiently backed up on a regular basis.
7.3 Rejection of Developer Products. Samsung does not undertake any obligation to monitor any Developer Products. However if we are notified or otherwise become aware and determine in our sole discretion, that a Developer Product or any portion thereof is inappropriate or violates this Agreement or violates any applicable law or regulation, we may halt all access by your Developer Product(s) to the Platform.
8. Your Obligations for Use of the Platform or Software Developer Kit
8.1 Your Representations and Warranties. You represent and warrant to Samsung that:
- (a) (i) you are and will be responsible for your Authorized Users' use of the Platform and Software Developer Kit and their compliance with this Agreement; (ii) you are and will be responsible for your End Users' use of the Software Developer Kit and Platform in connection with your Developer Products and (iii) you will be solely responsible for all activities you, your Authorized Users, and your End Users undertake in connection with the Platform, the Software Developer Kit, the Developer Products and the development of Developer Products.
- (b) your Developer Product: (i) is free from material errors and defects; (ii) has been designed and developed for installation and operation solely on devices that you have fully tested and approved; and (iii) will operate with the Platform.
- (c) use of your Developer Product does not and will not infringe the intellectual property rights, or other proprietary rights of any third party, and Samsung's use of any of these products, materials or services does not and will not infringe any proprietary rights of any third party, and you shall immediately notify Samsung in the event of any such infringement.
- (d) your Developer Product does not, and will not when delivered or provided, contain any computer code designed to disrupt, disable, harm, or otherwise impede in any manner the operation thereof, or any other associated software, firmware, hardware, computer system or network (sometimes referred to as "viruses" or "worms"), and you have taken reasonable steps to test for, and have found no such viruses or worms.
- (e) your Developer Product is not designed for, and will not be used in, life support systems, critical care applications, human implantation, commercial aviation, nuclear facilities or systems or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage, or any military or defense application, or any governmental procurement to which special terms or provisions may apply (e.g. FARS, DFARS, etc.).
8.2 General Conditions and Requirements. You acknowledge and agree that your Developer Products must comply with the conditions and requirements set out below:
- (a) You will not, through use of the Software Developer Kit or otherwise, create any Developer Product or other program that would disable, hack or otherwise interfere with any security, digital signing, digital rights management, content protection, verification or authentication mechanisms implemented in or through the Platform, this Software Developer Kit, or other Samsung software, services or technology, or enable others to do so.
- (b) You (i) will comply with all applicable legal and regulatory requirements; (ii) will comply with all applicable laws and regulations of any jurisdiction in which the Developer Products are offered or made available, including all regulatory and legal requirements applicable to the creation, testing, and use of any Developer Product (or any component of the Developer Product); and (iii) are solely responsible for obtaining all required and necessary permissions and/or approvals from relevant government or regulatory authorities.
- (c) You will ensure that any Developer Product introduced into interstate commerce, as of the date of that introduction, is not adulterated or misbranded within the meaning of the Federal Food, Drug, and Cosmetic Act, and is not an article which may not, under the provisions of section 404, 505, or 512 of the Federal Food, Drug, and Cosmetic Act, be introduced into interstate commerce.
- (e) You must not design or market Developer Products for the purpose of violating any legal rights of any person (including but not limited to privacy rights).
- (f) In addition, and without limiting your obligations to follow all applicable laws and regulations, you must ensure that any Developer Product that offers health information or location information based services or functionality, notifies and obtains consent from an individual before the individual's health or location data is collected, transmitted or otherwise used by the Developer Product. In addition, Developer Products that use health information based APIs shall comply with any registration process that we may implement.
- (g) If a Developer Product captures, collects or records any form of user or device data, images, pictures or voice data (collectively "Recordings"), or processes, maintains, uploads, syncs, or transmits any form of user data, content or information (collectively "Transmissions"), such Recordings and Transmissions must comply with all applicable laws and regulations (including but not limited to privacy laws) as well as any policies or requirements that Samsung may provide to you. In particular, you must ensure that a reasonably distinctive and conspicuous visual or audio indication that a Recording is taking place is displayed or played to the user as part of the Developer Product.
- (h) You will be solely responsible for any and all claims and/or damages arising from or related to the download or use of interpreted code in any Developer Product, other than the code that is interpreted and run by the documented Application Programming Interface(s) and built-in interpreters contained in the Software Developer Kit, except as authorized otherwise by Samsung in advance in writing.
- (i) If your Developer Products use location-based APIs for real-time route guidance, you must have an End User license agreement that includes the following notice: "REAL TIME LOCATION DATA ACCESSED VIA THIS DEVELOPER PRODUCT MAY BE INACCURATE OR INCOMPLETE. YOUR USE OF THIS DEVELOPER PRODUCT IS AT YOUR SOLE RISK." You shall not use the Developer Product for life support devices or other devices that may cause deaths, injuries or severe physical or environmental losses. Any attempt to do so shall be deemed as a material breach under this Agreement.
- (j) Developer Products must not disable, override or otherwise interfere with any Samsung-implemented system including, but not limited to, those that are intended to notify a user that the user's location data is being collected, transmitted, maintained, processed or used, or intended to obtain consent for such use. Developer Products may not provide services for which the user's consent has been denied or withdrawn.
- (k) If a Developer Product includes any Third Party Software, you must comply with all licensing terms applicable to such Third Party Software. However, you shall separate the Third Party Software from Software Developer Kit in your Developer Product and shall not cause any part of the Software Developer Kit in your Developer Product, any derivative works thereof, and/or Samsung's Confidential Information to be subject to the licensing terms applicable to such Third Party Software (e.g., public disclosure, public distribution). You shall indemnify, defend and hold harmless Samsung, its distributors and its customers from and against any and all claims, demands, damages, costs or expenses (including reasonable attorney's fees) and liabilities arising out of or in relation to the use of Third Party Software.
- (l) If your Developer Product includes any Open Source Software, (i) you are responsible for compliance with all applicable Open Source Software license terms, including any source code availability requirements, and (ii) your Developer Product must not cause any non-Open Source Software (including Samsung-proprietary software) to become subject to the terms of any Open Source Software license.
- (m) You will promptly respond to Samsung regarding the use of policies and APIs in connection with the Developer Product and/or Software Developer Kit, upon Samsung's request.
- (n) You will not attempt to hide or obscure any features, functionality or content in your Developer Product.
- (o) You will not exploit the Software Developer Kit in any unauthorized manner.
- (p) Your End User terms and conditions must meet the minimum requirements and include the minimum terms and conditions attached as Exhibit B.
9.1 Confidential Information. You acknowledge and agree that any information you receive from Samsung that is designated as confidential, or that would be reasonably understood to be confidential constitutes "Confidential Information" for the purposes of this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that you can demonstrate by written evidence: (a) is generally and legitimately available to the public through no fault or breach by you, (b) that Samsung has generally made available to the public, (c) that you independently developed without use or reliance of any Confidential Information, (d) that you lawfully obtained from a third party who has the right to transfer or disclose the information to you without limitation, or (e) any Open Source Software included in the Software Developer Kit, the licensing terms of which do not contain obligations of confidentiality.
9.2 Use and Protections of Confidential Information. You must protect Confidential Information using a degree of care that is no less than that which you use to protect your own confidential information of the same or similar importance (and in any event, no less than a reasonable degree of care). You may use Confidential Information solely for the purpose of exercising your rights and performing your obligations under this Agreement and you must not use Confidential Information for any other purpose or for your own or any third party's benefit, without the prior written consent of Samsung. You may disclose Confidential Information to the extent required by law, as long as you take reasonable steps to notify Samsung of the relevant requirement before disclosing the Confidential Information and you take reasonable steps to obtain protective treatment against disclosure of the Confidential Information. You acknowledge that any disclosure, use or misappropriation of Confidential Information of Samsung in violation of this Agreement would cause Samsung irreparable harm for which there may be no adequate remedy at law. Accordingly, you agree 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 at law or in equity.
9.3 Your Disclosures. Samsung works with many application and software developers and some of their products may be similar to or compete with your Developer Products. Samsung may also be developing its own similar or competing applications and products or may decide to do so in the future. To avoid potential misunderstandings, Samsung cannot agree, and expressly disclaims, any confidentiality obligations or use restrictions, express or implied, with respect to any information that you may provide in connection with this Agreement, including information about your Developer Product (such disclosures will be referred to as "Disclosures"). You agree that any such Disclosures will be non-confidential. Samsung will be free to use and disclose any Disclosures on an unrestricted basis without notifying or compensating you. You release Samsung from all liability and obligations that may arise from the receipt, review, use, or disclosure of any portion of any Disclosures. Any physical materials you submit to Samsung will become Samsung property and Samsung will have no obligation to return those materials to you or to certify their destruction.
10. DISCLAIMER OF WARRANTY
THE PLATFORM, SOFTWARE DEVELOPER KIT, AND ALL RELATED MATERIALS OR SERVICES FROM SAMSUNG ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND SAMSUNG MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE PLATFORM, SOFTWARE DEVELOPER KIT, UPDATES, OR ANY RELATED MATERIALS OR SERVICES, AND 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, TITLE OR NON-INFRINGEMENT. YOUR USE OF THE PLATFORM OR SOFTWARE DEVELOPER KIT, INCLUDING ANY UPDATES OR RELATED MATERIALS OR SERVICES, IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF THE PLATFORM, SOFTWARE DEVELOPER KIT, UPDATES, OR ANY RELATED MATERIALS OR SERVICES INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR, YOUR AUTHORIZED USERS' OR END USERS' COMPUTER SYSTEM, HARDWARE, SOFTWARE OR LOSS OF DATA. FOR THE PURPOSE OF CLARITY, THE PLATFORM AND SOFTWARE DEVELOPER KIT, INCLUDING UPDATES OR RELATED MATERIALS OR SERVICES, ARE LICENSED "AS-IS" AND WITH ALL FAULTS. SAMSUNG GIVES NO EXPRESS AND/OR IMPLIED WARRANTIES, GUARANTEE OR CONDITIONS.
11. 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 YOU OR ANY THIRD PARTY THROUGH YOU FOR PERSONAL INJURY OR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR DELAY OF DELIVERY, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, YOUR USE OF THE SOFTWARE DEVELOPER KIT, PLATFORM, UPDATES OR OTHER MATERIALS, PRODUCTS OR SERVICES PROVIDED BY SAMSUNG UNDER THIS AGREEMENT, OR YOUR, YOUR AUTHORIZED USERS' OR END USERS' USE, DEVELOPMENT, PRODUCTION OR DISTRIBUTION OF DEVELOPER PRODUCTS, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SAMSUNG HAS BEEN ADVISED OF OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. YOUR UNDERSTANDING, ACKNOWLEDGEMENT AND ACCEPTANCE OF THIS AGREEMENT ARE THE LEGAL BASIS AND CONSIDERATION FOR THE LICENSES GRANTED UNDER IT. In no event shall Samsung's total liability to you under this Agreement for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the greater of the amount paid to Samsung for the Software Developer Kit or the amount of fifty dollars ($50.00).
12.1 To the fullest extent permitted by law, you agree to indemnify, defend and hold harmless Samsung, its affiliates, directors, officers, employees, independent contractors and agents (each a "Samsung Indemnified Party") from any and all claims, losses, liabilities, damages, expenses and costs (including without limitation reasonable attorneys' fees) (collectively "Losses") incurred by a Samsung Indemnified Party as a result of your (or your Authorized User's) breach of this Agreement, any claims that your Developer Product violates or infringes any third party intellectual property or proprietary rights, or otherwise related to or arising from your (or any Authorized User's or End User's) use of the Software Developer Kit, Platform, other products and services provided by Samsung under this Agreement or your Developer Product or your (or any Authorized User's) development or distribution of any Developer Product (each a "Claim").
12.2 You acknowledge that the Software Developer Kit is not intended to be used in the development of any Developer Product where death, personal injury, or severe physical or environmental damage could result from errors or inaccuracies in the content, data or information provided by the Developer Product or by Developer Product failures. To the extent permitted by law, you agree to indemnify, defend and hold harmless each Samsung Indemnified Party from any Losses incurred by such Samsung Indemnified Party as a result of your use of the Software Developer Kit in the development of any such Developer Products.
12.3 You must not enter into a settlement or like agreement with any third party that affects Samsung's rights or binds Samsung in any way related to or arising from your (or your Authorized User's) use of the Software Developer Kit without the prior written consent of Samsung.
13. How This Agreement May Be Terminated
13.1 Right to Terminate. (a) You can terminate this Agreement immediately by stopping your use of the Software Developer Kit; and (b) Samsung can terminate this Agreement immediately, (i) if you have or we believe that you have breached any terms of this Agreement; (ii) if we are required by law to terminate this Agreement or the rights granted by Samsung; or (iii) if we stop providing the Software Developer Kit or Platform for any reason.
13.2 What Happens when this Agreement Terminates. Samsung will have no liability to pay compensation or damages, or to provide an indemnity of any kind as a result of terminating this Agreement, and termination of this Agreement is without prejudice to any other right or remedy that Samsung may have, now or at any time in the future. When this Agreement expires or terminates: (a) all rights granted to you in this Agreement will terminate; (b) you will immediately stop using the Software Developer Kit and return the Software Developer Kit to Samsung or destroy all electronic copies of the Software Developer Kit, and if Samsung requests you do so, provide written certification of such destruction to Samsung; and (c) Samsung will handle any related accounts or services in accordance with the Terms of Service. The provisions of Sections 3, 4.4, 4.5, 4.6, 4.7, 5.2(b), 6, 7.1, 9, 10, 11, 12, 13.2, and 14, will survive the expiration or termination of this Agreement. Termination of this Agreement will be without prejudice to any other right or remedy Samsung may have now or in the future.
14.1 Assignment. You may not assign the Agreement, in whole or in part, without Samsung's prior written consent. Any attempt to do so without such consent shall be void. Samsung may assign this Agreement without your consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
14.2 Relationship Between You and Samsung; Third Party Rights. This Agreement will not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal relationship between you and Samsung, and you must not represent the existence of any such relationship, whether expressly, by implication or otherwise. This Agreement is not for the benefit of any third parties.
14.3 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 performs the same or similar functions as the Developer Products or any other products or technologies that you develop, market, promote or distribute, or that otherwise competes with the Developer Products or such products or technologies.
14.4 Notices. Any notices or other communication made pursuant to this Agreement must be in writing 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:
SAMSUNG ARTIK CLOUD ™
Samsung Semiconductor, Inc.
3655 North First Street
San Jose, CA 95134
You agree to receive notices and other communications to be made to you pursuant to this Agreement by email and you agree that any notices that Samsung sends to you 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.
14.5 Severability. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable for any reason, that provision of this Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. However, if applicable law prohibits or restricts you from fully and specifically complying with the Sections of this Agreement entitled "Grant of Developer License and Restrictions" or "Licensee's Responsibilities" or prevents the enforceability of either of those Sections, this Agreement will immediately terminate and you must immediately discontinue any use of the Software Developer Kit as described in the Section entitled "Termination."
14.6 No Waiver; Construction. Failure by Samsung to insist upon 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 you in the performance or compliance with any of the terms and conditions set forth in this Agreement. Any laws or regulations that provide that the language of a contract will be construed against the drafter will not apply to this Agreement. Section headings are for convenience only and are not to be considered in construing or interpreting this Agreement.
14.7 Export Control. You may not use, export, re-export, import, sell or transfer the Software Developer Kit except as authorized by United States law, the laws of the jurisdiction in which you obtained the Software Developer Kit, and any other applicable laws and regulations. In particular, but without limitation, the Software Developer Kit may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person's List or Entity List. By using the Software Developer Kit, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Software Developer Kit for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, chemical or biological weapons.
14.8 US Government End Users. The Software Developer Kit is a "Commercial Item", as that term is defined at 48 C.F.R. § 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government End Users (a) only as Commercial Items and (b) with only those rights as are granted to all other End Users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.
14.9 Governing Law; Venue.
- (a) This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to any conflict-of-laws rules. 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 finally resolved by arbitration to be held in Santa Clara, California and conducted in English under the Rules of Arbitration of the International Chamber of Commerce; provided, however, that each party may enforce its or its affiliates' intellectual property rights in any court of competent jurisdiction, including but not limited to equitable relief. The arbitral award shall be final and binding on the parties. Except to the extent entry of judgment and any subsequent enforcement may require disclosure, all matters relating to the arbitration, including the award, shall be held in confidence.
- (b) Notwithstanding the foregoing, if you are an agency, instrumentality or department of the federal government of the United States, then this Agreement shall be governed in accordance with the laws of the United States of America, and in the absence of applicable federal law, the laws of the State of California, USA will apply. Further, and notwithstanding anything to the contrary in this Agreement (including but not limited to Section 12(Indemnity)), all claims, demands, complaints and disputes will be subject to the Contract Disputes Act (41 U.S.C. §§ 601-613), the Tucker Act (28 U.S.C. § 1346(a) and § 1491), or the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2401-2402, 2671-2672, 2674-2680), as applicable, or other applicable governing authority.
- (c) If you (as an entity entering into this Agreement) are a U.S. public and accredited educational institution, then (a) this Agreement will be governed and construed in accordance with the laws of the state (within the U.S.) in which Licensee's educational institution is domiciled, except that body of state law concerning conflicts of law; and (b) any litigation or other dispute resolution between Licensee and Samsung arising out of or relating to this Agreement, the Software Developer Kit, or your relationship with Samsung will take place in federal court within the Northern District of California, and Licensee and Samsung hereby consent to the personal jurisdiction of and exclusive venue of such District unless such consent is expressly prohibited by the laws of the state in which Licensee's educational institution is domiciled.
- (d) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
14.10 Entire Agreement; Governing Language. This Agreement contains the entire agreement between the parties with respect to the use of the Software Developer Kit licensed hereunder and supersedes all existing agreements and all other oral, written or other communications between the parties concerning this subject matter. 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. If we provide any translation of this Agreement to fulfill local requirements and there is a dispute between the English and any non-English version, the English version of this Agreement governs.
- 1. The categories of personally identifiable information ("Personal Information") collected by your Developer Product;
- 2. The categories of third parties or persons with which you may share Personal Information;
- 3. How you use and disclose Personal Information;
- 4. The controls that users have with respect to use and disclosure of Personal Information;
- 5. A general description of the security measures that you employ to safeguard Personal Information;
- 6. If you maintain a process for a user of the Developer Product to review and request changes to his or her Personal Information, a description of that process;
- 9. Whether you respond to Web browser "do not track" signals or other mechanisms that provide users the ability to exercise choice regarding the collection of Personal Information;
- 10. How you or other parties may collect Personal Information about a user's online activities over time and across different websites when a consumer uses the Developer Product; and
- 11. If you will disclose Personal Information to third parties, you will obtain reasonable user consent to such disclosure.
Minimum End User Terms and Conditions
As provided in Section 8.2(p) of the Agreement, if a Developer Product is expected to be made available to End Users through the Platform, your End User License Agreement ("EULA") will include the following minimum terms and conditions.
Your EULA must:
- 1. Comply with all applicable laws in all countries where End Users will purchase or download a Developer Product.
- 2. Provide that you and your End User will acknowledge that the EULA for your Developer Product is solely between you and your End User and Samsung will not be responsible for, and Samsung will not have any liability whatsoever under any EULA for any breach by you or any End User of any terms and conditions of your EULA.
- 3. Provide for usage rules for Developer Products that are at least as restrictive as any usage rules provided by Samsung through the Platform or the accompanying website.
- 4. Inform your End Users and require your End Users to acknowledge that you are solely responsible for providing any maintenance and support services for your Developer Product, and that Samsung has no obligation whatsoever to provide any maintenance or support services for your Developer Product.
- 5. Make you solely responsible for any product warranties. The EULA must also provide that, if the Developer Product does not conform to any applicable warranty, to the maximum extent permissible by law, Samsung will have no warranty obligation whatsoever with respect to the Developer Product, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be your sole responsibility.
- 6. Provide that you, not Samsung, are responsible for addressing any claims of any End User or any third party relating to or arising from the Developer Product or End User's possession or use of such Developer Product or the Platform, including but not limited to any claims that the Developer Product infringes any third party's intellectual property rights, claims arising under any consumer protection, FDA or any other legal or regulatory requirement.
- 7. Require the End User to represent and warrant that such End User is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and that such End User is not listed on any U.S. Government list of prohibited or restricted parties.
- 8. Provide your name, address and contact information (telephone number and email address) for End Users to contact you with questions, complaints and/or claims with regard to the Developer Product.
- 9. Provide that Samsung and its affiliates are third party beneficiaries of your EULA, and upon the End User's acceptance of the terms and conditions of the EULA, Samsung will have the right (and be deemed to have accepted the right) to enforce the EULA against the End User as a third party beneficiary.
In addition, you acknowledge and agree to the following terms and conditions.
- 1. Allow your End Users to review your EULA before or at the time your Developer Product is delivered to your End User.
- 2. Allow us to notify your End Users that their use of your Developer Product is subject to the terms and conditions of your Developer Product.
- 3. Agree that if you do not furnish a EULA for your End Users, each End User's use of your Developer Product is subject to our standard EULA.