SAMSUNG ARTIK CLOUD™ Platform Terms of Service
Last Updated: May 25, 2018
Welcome to the SAMSUNG ARTIK™ CLOUD. Samsung Semiconductor, Inc., together with any subsidiaries and/or affiliates that license materials for the SAMSUNG ARTIK CLOUD ™ Platform (collectively, "Samsung", "we", "us" or "our") offers you, as an individual or an authorized representative of a corporation or other entity ("you" or "your"), access to our ARTIK Cloud™ open data exchange platform and related websites for the Internet of Things (the "Platform"), one or more Samsung mobile applications ("ARTIK Apps"), and certain other features, software, tools, products and services (collectively, together with the Platform and ARTIK Apps, the "Services").
Consent to Terms of Service. By using the Services, you are agreeing to the Terms of Service set forth herein ("Terms of Service") and, for certain Services, additional terms and conditions that you may be required to agree to before you can receive or use them ("Special Terms") (collectively, "Terms"). These Terms are a legal agreement between you and us that governs your use of the Services. If you do not agree to these Terms, please do not click the "I Agree" button for these Services or use any of the Services. If you don’t agree these Terms, you can’t use or access the Services in any manner.
- Terms of Service.
- General Terms. In order to utilize the Services, you must accept the following Terms of Service. If you do not accept these Terms, you will be unable to use the Services. Your use of the Services shall be governed by these Terms.
- Special Terms. In addition, certain Services may require you to enter into agreements with us providing additional terms of service for your use of such products before use. We refer to these as "Special Terms". In the event of a conflict between these Terms of Service and the Special Terms, the Special Terms will control, but only to the extent of such conflict.
- Third Party Terms. As we explain below, if you are using the Services to connect to, control or otherwise use devices, applications or services offered by third parties that are not owned or controlled by Samsung (collectively, "Third Party Products"), you should make sure you read such third parties’ terms of service and privacy policies before you use the Services in connection with their products. Keep in mind that Samsung is not responsible for the accuracy or completeness of third party terms, policies, or notices. Upon your consent, we connect you to Third Party Products, but we do not control what happens to your data once you have connected with a Third Party Product.
- Developer Terms. Through the Platform’s Developer Portal (https://developer.artik.cloud) and related services, Samsung offers Developer Services – a subset of Services that enable the development of Developer Products, Connectors, and/or Applications, as defined in the Samsung ARTIK Cloud Platform Developer License Agreement. Use of such Developer Services is governed by an additional set of Special Terms that supplement these Terms, found in the Samsung ARTIK Cloud Platform Developer License Agreement, available at https://developer.artik.cloud/terms-service.html#license, as well as an applicable Enterprise Services agreement, which can be found by contacting the ARTIK sales team.
- Eligibility. 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 (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; and (d) you agree, on behalf of yourself or your organization that you represent, to be bound by these Terms.
- How Samsung May Change These Terms of Service. We are constantly trying to improve the Services, so these Terms may need to change along with the Services. Samsung may modify, update, add to, discontinue, remove or otherwise change any portion of these Terms at any time and may require you to accept new or updated Terms as a condition of your continued use of the Services, or may otherwise notify you of changes through the Services. When Samsung amends these Terms, 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 ARTIK Cloud™ website and in any applicable ARTIK Apps by revising the link on the homepage or providing a notice through the ARTIK App for a reasonable amount of time. The link or message 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 have been changed, you will be deemed to have unconditionally consented and agreed to such changes. The most current version of these Terms will be available at https://artik.cloud/terms-service.html and will supersede all previous versions.
- Account and Registration Data.
- Opening An Account. To use the Services, you will need to register and open an account. Account holders are generally referred to as "Users". 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. 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.
- User Responsibilities. 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. 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. Except to the extent caused by our breach of this Agreement, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or anyone you authorize to use your account), and (b) we are not responsible for unauthorized access to your account. You agree not to use the account of any other user without permission of the user or person holding the respective account. 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.
- Closing or Disabling Your Account.
- Samsung May Close Your Account. Samsung may also terminate or suspend access to your use of the Services or your account, for any reason in our discretion, including your breach of these Terms, your use of the Services in a manner inconsistent with the Terms, compliance with applicable laws or regulations, or our cessation of the Services. Samsung has the sole right to decide whether you are in violation of any restriction set forth in the Terms. Terminating this Agreement will not prejudice any rights, obligations and liabilities that you or Samsung have accrued or incurred while these Terms were in effect.
- Your Content and Data. Account termination or suspension may result in the destruction of your User Content and User Data. Samsung is under no obligation to maintain your User Content or User Data upon closure (unless such maintenance has been agreed to in a separate written agreement with Samsung). We will try to provide you with advance notice to your prior to our terminating your account so that you are able to retrieve any important User Content or User Data you may have stored in your account (to the extent allowed by law, these Terms, and the functionality of the Services), but we may not do so if we determine at our sole discretion that it would be impractical, illegal, not in the interest of someone's safety or security, or otherwise harmful to the rights or property of Samsung. We will retain certain Personal Information related to your account and your use of the Services for legal, regulatory, audit and tax requirements for a period of seven years after your account is closed. After this period has expired, the Personal Information relating to your account and your use of the Services will be deleted.
- Samsung’s Rights to Modify or Stop Any Services. 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 particular countries where Users reside or from where Users are using the Services); (b) disable or suspend Users’ use of Services including access to their account(s) and any files or other content contained in their account(s) either temporarily or permanently; (c) limit the number of transmissions Users 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 Users’ access to any Third Party Product accessible through the Services for any reason, including, for example and without limitation, Samsung’s discovery that such Third Parties are in violation of their contractual obligations to Samsung, these Terms, any other agreements or applicable laws or regulations.
- Content Available Through The Services.
- Content. Content available in or through the Services or accessible as part of or by the use of the Services (including information, materials, documents, media files, audio and sound files, data files, images, music, photographs, software, videos, written text, or other data or content) is referred to as "Content." All Content is entirely the responsibility of the originator of such Content.
- User Content. Each User retains ownership of the Content that they upload, transmit, create, post, display, store, make available, or otherwise provide to us on or through the Services ("User Content"). User Content includes, but is not limited to, the information and/or data that is provided when a User uses the Services to connect with various hardware devices, services, or applications, usually in an automated fashion ("User Data"). Other than the rights granted to Samsung under these Terms, Samsung does not claim ownership of or any other rights to User Content or User Data, and each User retains ownership of any intellectual property rights that they hold in their User Content or User Data. In other words, the User Content and User Data that is generated by you belongs to you and remains yours. You agree that you are responsible for protecting and enforcing any intellectual property rights you have in your User Content, and that Samsung is not obliged to protect or enforce any intellectual property rights you have in your User Content on your behalf.
- Responsibility For Content. All Content is entirely the responsibility of the originator of such Content. Samsung does not endorse and has no control over Content provided by parties other than Samsung, and we aren't liable for any errors or omissions in that Content or for any damages or loss you might suffer in connection with it. For example, and without limitation, we can't guarantee the identity of any users or third parties with whom you interact in using the Services and are not responsible for which users gain access to the Services or which third parties they access through the Services. Moreover, we cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. You acknowledge that all Content accessed by you using the Service and all Content provided by you are at your own risk and you will be solely responsible for any damage or loss to any party resulting therefrom.
- Your User Content. You are entirely responsible for your User Content 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:
- License to User Submissions. 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.
- Use Of Third Party Products. You may use the Services to connect to or otherwise use Third Party Products, such as Applications developed and offered by Third Parties. In using the Services in connection with Third Party Products, you may locate, access, browse and/or download applications, data files, services, information, materials, documents, media files or other data or content from them ("Third Party Content") and/or authorize these Third Party Products to access your User Content for use in connection with their product or service ("Third Party Access"). You accept that there are risks in Third Party Content and Access, and that by accessing or using Third Party Products, Samsung is not responsible for such risks. Once you connect to a Third Party Product, Samsung is not responsible for and has no control over Third Party Content or Access (including advertisements, products and other materials) 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 Third Party Content or Access (including any reliance by you on the availability, accuracy, applicability or completeness of the Third Party Content). By using the Services, you release and hold us harmless from any and all liability arising from your use of any Third Party Content or Access.
- Third Party Offerings. 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. Your interactions with third party organizations and/or individuals found on or through the Services, including payment and delivery of goods or services under any transaction you enter into with a third party, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that Samsung shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
- Third Party Disputes. If there is a dispute between Users in relation to the Services, or between you and any third party, you agree that Samsung is under no obligation to become involved. In the event that you have a dispute with one or more other Users or third parties, you release Samsung, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor."
- Use License.
- License. Subject to the terms and conditions of these Terms and any applicable Special Terms, Samsung grants you a non-exclusive, non-transferable, worldwide, revocable license to use the Services.
- Reservation of Rights. As between you and Samsung, Samsung owns all right, title and interest in and to the Services, including without limitation all applicable intellectual property rights or other proprietary rights in the such Services, regardless of whether registered/legally secured or not. Except for the rights granted to you in these Terms, Samsung retains all rights in and to the Services. You agree that 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.
- Use Restrictions.
- You represent, warrant, and agree that you will not contribute any User Content or otherwise use the Services or interact with the Services in a manner that:
- You agree you will 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.).
- You agree to always comply with these Terms, all instructions Samsung provides in connection with the Services, 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.
- You agree you will only use or attempt to use the Services through the interface Samsung provides to you or otherwise authorizes you to use.
- You agree that 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.
- 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.
- Samsung reserves the right to require payment of fees for certain features of the Services or for certain Third Party Products available through the Services. Should you elect to subscribe to such features or purchase such products, you shall pay all applicable fees, as described on the Services in connection with such features or products. Current service and pricing information is available at https://www.artik.cloud/pricing. All prices will include any applicable sales tax. Prices for any products and services offered via the Services, whether from Samsung or a Third Party, may change at any time, and Services do not provide price protection or refunds even if there is a price reduction or promotional offering.
- You are responsible for the timely payment for all products and services you elect to 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. 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, 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. Samsung may add or remove payment processing methods at any time, with or without notice. 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.
- All sales are final. Any purchased Services will be terminated if you do not pay for those Services or you change your use of Services to those that Samsung provides free of charge. If a feature or portion of the Services or Third Party Product becomes unavailable after a transaction but before you download or receive the Services or Third Party Product, your sole and exclusive remedy is a refund. If technical problems prevent or unreasonably delay delivery of the Services or Third Party Product, your sole and exclusive remedy is either replacement or refund of the price paid, as determined by Samsung.
- If you are connecting to or using certain Third Party Products through the Services, we may require you to provide a payment processing method to use in the event that you exceed the number of transmissions or amount of storage you are eligible to use before you will incur a fee. We may, at any time change the number of transmissions or amount of storage you are eligible to use before you will incur a fee. On the first day after you exceed this threshold, we will begin billing you for the subscription fee on a recurring basis, unless you cancel prior to the end of the free trial period. However, we may authorize your payment processing method as soon as you register for the Services. Keep in mind that sometimes, your available balance or credit limit may be reduced to reflect the authorization. You may not receive notice from us that you have exceeded the threshold under which the Services are available or that the paying period of your subscription has begun.
- Software and Software Updates and Updates to the Services. As part of our provision of the Services, software provided by us, or providers, or Developers 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 the Services, 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 the device you use to access the Services.
- Use of Location-based Services. Samsung and its partners and licensors may provide certain features or services that rely upon device-based location information using GPS (if available), and cell tower and Wi-Fi hotspot locations. To provide such features and services, Samsung and its partners and licensors may need to collect, use, transmit, process and maintain your location data, including, but not limited to, the geographic location of your device and information related to your Samsung account and any devices registered thereunder. Any location data provided by the Services (if available) is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate, time-delayed or incomplete location data may lead to death, personal injury, property or environmental damage. Samsung expressly disclaims any guarantee regarding the availability, accuracy, completeness, reliability, or timeliness of location data or any other data displayed by the Services or Third Party Products. Location-based services are not intended or suitable for use as an emergency locator system.
- Content Protections.
- Content Protections. All Content is protected by copyright and other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won't use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else's (including Samsung’s) rights. You are not permitted to modify, rent, lease, loan, sell, distribute or create derivative works based on any part of the Content (either in whole or in part) or to grant licenses to the Content.
- Content Marks. 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 to any Content 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. As for Samsung’s Marks, 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.
- Content Infringement. Samsung may respond to notices of alleged copyright infringement or violation of other laws in accordance with applicable law, and we reserve the right to delete or disable Content alleged to be infringing, 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. 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.
- ARTIK Apps. These Terms are between you and Samsung only. We use certain third parties to distribute ARTIK Apps and may use third parties for other service. These third parties, such as Apple, Inc., Amazon, Inc. and Google, Inc. ("App Distributors"), have no warranty, maintenance, support or other service obligations with regard to our Services. We, and not the App Distributers, are solely responsible for our Services. You understand and agree that the App Distributors have no obligation to provide maintenance and support services with respect to any of our Services. You further agree, with respect to any App distributor to you by an App Distributor:
- Both you and Samsung acknowledge that the Terms are concluded between you and Samsung, and not with App Distributor, and your App Distributor is not responsible for the ARTIK App or the Content;
- The ARTIK App is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of this Agreement as they are applicable to the Services;
- You will only use the ARTIK App in connection with a device that you own or control;
- You acknowledge and agree that the App Distributor has no obligation whatsoever to furnish any maintenance and support services with respect to the ARTIK App;
- In the event of any failure of the ARTIK App to conform to any applicable warranty, including those implied by law, you may notify your App Distributor of such failure; upon notification, your App Distributor’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the ARTIK App;
- You acknowledge and agree that Samsung, and not the App Distributor, is responsible for addressing any claims you or any third party may have in relation to the ARTIK App;
- You acknowledge and agree that, in the event of any third party claim that the ARTIK App or your possession and use of the ARTIK App infringes that third party's intellectual property rights, Samsung, and not the App Distributor, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- Both you and Samsung acknowledge and agree that, in your use of the ARTIK App, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
- Both you and Samsung acknowledge and agree that the App Distributor and its subsidiaries are third party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, the App Distributor will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as the third party beneficiary hereof.
- 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 use of the Services (including any activities under your account and use by your employees and personnel); (b) breach of these Terms or violation of applicable law by you; (c) your User Content or the combination of your User Content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third-party rights by your User Content or by the use, development, design, production, advertising or marketing of your User Content; or (d) a dispute between you and any third party. 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.
- We will promptly notify you of any claim subject to your obligations under this Indemnification Section, but our failure to promptly notify you will only affect your obligations under this Indemnification Section 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.
- Samsung's Warranties and Representations. EXCEPT AS OTHERWISE SET FORTH IN THESE TERMS, THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY UPDATES, FROM SAMSUNG ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND SAMSUNG EXPRESSLY DISCLAIMS ANY WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SERVICES, 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 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 YOUR PRODUCTS, COMPUTER SYSTEM, HARDWARE, SOFTWARE OR LOSS OF DATA OR PROFITS.
- Your Liability. You are entirely responsible for any breach of your obligations under these Terms or 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, in respect of such breach.
- 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 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 SERVICES, ANY THIRD PARTY PRODUCTS, OR ANY 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 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).
- Language of this Agreement. Samsung may provide you with a translation of the English version of these Terms. 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, to the extent permissible by applicable law, the English language version takes precedence.
- General Provisions.
- Samsung will rely only on the written Terms. 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.
- Samsung may provide you with notices (including notices relating to changes to the Terms or termination of the Services or parts thereof) by email, ordinary mail, or postings on or via the Services.
- Failure by Samsung to exercise or enforce any legal right or remedy under these Terms 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.
- If any provision of these Terms 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.
- You may not transfer, assign or otherwise dispose of these Terms or any of your rights or obligations arising under these Terms without the prior written consent of Samsung.
- You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Services or these Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred.
- The Services are available to users globally. If you are located outside the U.S., you (i) acknowledge and agree that these Terms are only being offered in English, and that if there is any translation of these Terms, the English version shall govern; and (ii) acknowledge and agree that Services derived or obtained from Samsung may be subject to the export laws of the USA and the export or import laws of other countries, and you agree to comply strictly with all such laws and, in particular, shall: (1) obtain any export, re-export, or import authorizations required by your local laws or the laws of the USA; and (2) you understand that the export control laws of the USA prohibit the export of certain technical data and software to certain territories, and that no software available from the Services may be downloaded or exported: (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Sudan, Syria, or any other country to which the United States has embargoed goods; or (ii) to anyone on the United States’ Treasury Department's list of Specially Designated Nationals or the United States’ Commerce Department's Table of Deny Orders.
- These Terms 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 (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. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow these Terms and can award the same damages and relief as a court (including attorneys' fees). The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in these Terms and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under these Terms, and each party hereby irrevocably waives any claim to such damages. 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. We each agree that any proceedings, whether in arbitration or court, will be conducted only on an individual basis and not in a class or representative action or as a member in a class, consolidated or representative action. If a court or arbitrator determines in an action between you and us that this Class Action Waiver is unenforceable, the arbitration agreement will be void as to you. If a claim proceeds in court rather than through arbitration, we each waive any right to a jury trial. 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.
(a) You own all rights pertaining to your User Content or are otherwise authorized to grant Samsung the User Content License;
(b) your User Content does not and will not infringe any intellectual property or other third party rights;
(c) your 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) your 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) your 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 your User Content by Samsung in Samsung’s provision of the Services will not require Samsung to pay any kind of monetary contribution (including license fees, dues or otherwise) to any third party.
(a) reproduces, duplicates, copies, sells, trades or resells any of the Services or parts of the Services;
(b) removes any proprietary notice language corresponding to the Services;
(c) modifies, alters, tampers with, repairs, or otherwise creates 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 engineers, disassembles, decompiles, copies, edits, modifies, alters or creates a derivative work of, or otherwise attempts to extract the source code of the Services (or any part of the 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;
(e) accesses or uses the Services in a way intended to avoid incurring fees or exceeding usage limits or quotas;
(f) grants any third party a license to use the Services or otherwise to access your account or the Services;
(g) uses the Services to provide services to any third parties;
(h) otherwise assigns, grants a sublicense in, or grants a security interest in or over any of the rights granted to you in these Terms, loan or lease the Services and/or otherwise transfers any such rights to any third party;
(i) uses 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);
(j) Infringes or violates the intellectual property rights or any other rights of anyone else (including Samsung);
(k) Violates any law or regulation;
(l) Is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable;
(m) Jeopardizes the security of your ARTIK Account or anyone else's (such as allowing someone else to log on as you on the Services);
(n) Attempts, in any manner, to obtain the password, PIN number, account, or other security information from any other User; or
(o) Engages in any activity that may interfere with or disrupt the Services or any servers, networks or other equipment connected to the Services.
Last Updated: May 25, 2018
Thank you for your interest in the SAMSUNG ARTIK CLOUD Platform. Through the Platform, Samsung makes a number of services available to Developers ("Developer Services," as defined below). This Developer License Agreement (the "Agreement") governs your use of these Developer Services, and is between Samsung Semiconductor, Inc., together with any subsidiaries and/or affiliates that license materials for the SAMSUNG ARTIK CLOUD ™ Platform ("Samsung") and the legal entity on behalf of which you are legally authorized to act for ("Developer," "you," or "your")) (each a "Party" or jointly the "Parties") and supplements the Platform Terms, as defined below. All capitalized terms shall have the same definitions as provided under the Platform Terms, unless otherwise defined herein.
IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE "ACCEPT" BUTTON OR DOWNLOADING, INSTALLING OR USING ANY ASPECT OF THE DEVELOPER SERVICES (DEFINED BELOW), YOU AGREE AS A LEGALLY AUTHORIZED REPRESENTATIVE OF DEVELOPER THAT DEVELOPER CONSENTS TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE THAT DEVELOPER CONSENTS TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE "ACCEPT" BUTTON OR DOWNLOAD, INSTALL OR USE THE SAMSUNG SERVICE.
- Definitions. Capitalized words used in this Agreement shall have the following meanings.
- "Affiliate" means, with respect to a Party, a Person that Controls or is Controlled by, or is under common Control with, such Party.
- "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 from time to time during the Term.
- "Application" means a web or mobile software application developed or optimized for use by End Users in connection with the Platform pursuant to the Developer Terms, together with any applicable upgrades, enhancements, fixes and versions, that Developer may deliver to Samsung and/or App End Users under this Agreement. Unless otherwise indicated, references to "Application" shall refer to Applications developed or optimized by Developer.
- "App End Users" are End Users who use an Application in connection with the Platform.
- "Authorized Users" means Developer’s employees or other authorized contractors or agents authorized by Developer to utilize the Platform Services and/or Developer Services, who have binding written agreements with Developer to protect the unauthorized use and disclosure of Samsung’s Confidential Information.
- "Confidential Information" has the meaning set forth in Section 10.
- "Control" means the possession, direct or indirect, of the power to vote fifty percent (50%) or more of the securities that have ordinary voting power for the election of directors of any entity, or to direct or cause the direction of the management and policies of such entity, whether through ownership of voting securities or by contract or otherwise.
- "Connector" means a Developer Product developed or optimized by Developer to enable End Users to access a Third Party Product through the Platform, pursuant to the terms of this Agreement and/or an applicable Enterprise Services Agreement, together with their applicable upgrades, enhancements, fixes and versions, that Developer may deliver to Samsung and/or End Users under this Agreement.
- "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.
- "Developer Product" means any software, hardware or other product or service created or manufactured by or on behalf of Developer using Developer Services pursuant to the terms of this Agreement.
- "Developer Services" means any Technology, software and/or services provided by Samsung and/or its Affiliates to Developer in connection with the Platform to enable Developer to create, maintain, and/or use Connectors, Applications, and other Developer Products, which may include APIs, Documentation, SDKs, data, files, libraries, materials, IDE (Integrated Development Environment), software (source code, object code), simulators, tools, Updates, over-the-air updates to Developer Products ("OTAs"), certifications and publications provided or made available to the Developer by Samsung under this Agreement for use in connection with the Developer Services. For the avoidance of doubt, "Developer Services" does not include Samsung ARTIK hardware products such as ARTIK IoT Modules and related software distributed or made available under different licenses or agreements, third party products, or any other hardware or software distributed under different separate licenses by Samsung, its Affiliates, or third parties.
- "Documentation" means any technical specifications, development guidelines, hardware schematics, hardware diagrams, technical layout and other specification or documentation that Samsung may make available or provide to Developer through the Platform or otherwise for use in connection with the Developer Services.
- "End User" means an end user of the Platform Services. End Users can use the Platform Services in connection with a Developer Application, a third party application or service, and/or a Platform Application.
- "Enterprise Services Agreement" means a written agreement between Developer and Samsung that provides additional Special Terms concerning Samsung’s provision of Developer Services to Developer.
- "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 in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and services for, any of the rights referred to in clauses "(i)" through "(v)" above.
- "Licensed Software" means the certain aspects of the Developer Services which Samsung designates to provide to Developer under Section 2 of this Agreement.
- "Marks" means trade names, trademarks, service marks, designs, logos, domain names and other distinctive brand features. For clarification, "Developer Marks" means the Marks owned and/or controlled, in whole or in part, by Developer or its Affiliates and made available by Developer for use by Samsung, and "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 Developer in relation to the Connector and/or Developer Product.
- "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.
- "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 without limitation 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.
- "Platform" means the Samsung data interoperability platform for the Internet of Things that is currently known as SAMSUNG ARTIK CLOUD ™ (formerly known as SAMIIO).
- "Platform Applications" means (i) the "My Cloud" web application available for use at https://artik.cloud; (ii) the Samsung ARTIK mobile applications developed by Samsung for use with the Platform; and (iii) any other web or software application developed by Samsung for use with the Platform.
- "Platform End Users" are End Users who use Platform Applications in connection with the Platform.
- "Platform Services" means the services offered to End Users by Samsung through the Platform.
- "Processing" means to the collection, storage, manipulation, use, disclosure, disposal or other action of Personal Information.
- "Services" means the Developer Services, the Platform, the Platform Services, and other related Samsung products and services.
- "Technology" means any inventions (whether or not patentable), ideas, concepts, processes, methods, know-how, designs, information, data, software programs (including source and object codes), application programming interfaces ("APIs"), documentation, specifications, techniques, software development toolkits, products, devices, apparatuses, works of authorship, and other forms of technology.
- "Territory" means any territory where Samsung makes the Platform publicly available.
- "Third Party Product" means devices, applications or services offered by third parties that are not owned or controlled by Samsung or Developer. This includes, for example and without limitation, Applications, Connectors, or devices developed by third parties.
- "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.
- "Updates" means, in regards to a Technology, as applicable, any bug fixes, enhancements, modifications, new releases, new versions, supplements, updates or upgrades.
- Developer Services Components. As part of the Developer Services, Samsung may make available to you proprietary components (consisting of closed source components and reference source components), and Open Source Software components, as further described below:
- License to the Developer Services. As long as Developer complies with the Agreement, the Platform Terms, and any applicable Documentation, Samsung hereby grants to Developer a personal, limited, non-exclusive, revocable, non-sublicensable (except as set forth herein) and non-transferrable license and right during the Term, within the Territory:
- Restrictions. Except as otherwise allowed under this Agreement (which includes those rights to use the Developer Services for or with your Developer Product granted to you under this Section 2.2), you must not, directly or indirectly,
- Reservation of Rights. Samsung, at its discretion, may impose limits on certain features or restrict your access to parts or all of the Services. No rights or licenses are granted except as expressly and unambiguously set forth herein.
- Feedback; Notification.
- In order for Samsung to improve the Services, Samsung may from time to time request Developer to provide feedback regarding the use of the Services and Developer shall use its commercially reasonable efforts to promptly respond to such request. Developer shall inform Samsung of present and probable malfunctions, defects or security problems with any of the Services and shall provide reasonable cooperation at Samsung's request to further diagnose all such problems.
- Developer shall promptly notify Samsung of: (i) any vulnerability or security issues within a Developer Product; (ii) any discontinuation or suspension of service or support with respect to a Developer Product; or (iii) other events requiring Samsung to suspend the access by a Developer to any of the Services.
- Modifications; Test Version. Samsung may, at any time without notice, extend, enhance, or otherwise modify the Services. If Samsung makes available any Updates to Developer, 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). Developer 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 Services. Where an Update is made available, such Update may have APIs, features, services and/or functionalities that are different from those found in the Services as of the Effective Date. If an Update would result in improper function of a Developer Product due to incompatibility with an updated Services, the Developer shall implement an update to the Developer Product within a timeline specified by Samsung or, if no timeline is specified, within a reasonable period of time following the date such Update is made available and, if required by Samsung, shall pass Samsung's internal test and take other procedures in accordance with Section 6. Developer is required to periodically check availability of any new Updates on the relevant Samsung web portals for proper function of Developer Products. From time to time, Samsung may offer you "beta" or test versions of a Samsung Product. 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.
- Intellectual Property Rights.
- Ownership; Intellectual Property Rights.
- Brand Marks.
- Developer Product Requirements.
- Development, Delivery, Operation of Developer Products. Developer shall ensure that the design, development, delivery, implementation, and operation of any Developer Product are in accordance with this Agreement and the Platform Terms, including without limitation any and all Documentation. In particular, Developer acknowledges and agrees that prior to any use of any Samsung Mark in connection with a Developer Product in accordance with this Agreement or the distribution, public release or public demonstration of a Developer Product for use with the Platform, Developer will follow and complete all requirements established by Samsung at its sole discretion, which procedures may include, for example and without limitation, Developer’s submission of all requested Product Documentation or Developer’s agreement to be bound by the terms of any related agreements Samsung may require, such as for example an Enterprise Services Agreement ("Related Agreements").
- Product Documentation. Samsung, through the Platform or otherwise, may from time to time require technical and/or functional information concerning Developer Products ("Product Documentation") as a condition of allowing them to be accessed or otherwise used in conjunction with the Platform. Developer shall provide all requested Product Documentation, and shall ensure that the Product Documentation conforms to and is in all respects consistent with any Applicable Laws. Developer shall maintain the accuracy and completeness of the Product Documentation.
- Ability To Function With Platform. Developer agrees that in order for a Developer Product to be made available for use by End Users, Developer must maintain the Developer Product’s ability to function with the Platform at service levels satisfactory to Samsung.
- General Restrictions. Developer agrees that Developer Products (i) will not 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 Developer Service to perform would be reasonably expected to cause deaths, injuries or severe physical property or environmental losses or any military or defense application, or any governmental procurement to which special terms or provisions may apply (e.g. FARS, DFARS, etc.); (ii) will not disable, hack or otherwise interfere with any authentication, content protection, digital signing, digital rights management, security or verification mechanisms implemented in or through the Services or other Samsung software, services or technology, or enable others to do so; (iii) 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 Developer has taken reasonable steps to test for, and have found no such viruses or worms; (iv) are not designed or marketed for the purpose of violating any legal rights of any person (including but not limited to privacy rights). Developer further agrees that Developer will not attempt to hide or obscure any features, functionality or content in your Developer Product from Samsung or End Users.
- Legal Compliance: General. Developer agrees that Developer (i) will comply with all applicable legal and regulatory requirements; (ii) will comply with all Applicable Laws of any jurisdiction in which the Developer Products are offered or made available by Developer, 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) for Developer Products offered or made available by Developer, are solely responsible for obtaining all required and necessary permissions and/or approvals from relevant government or regulatory authorities.
- Legal Compliance: FDA. 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.
- Legal Compliance: Personal Information. In regards to Processing Personal Information received by Developer as a result of or in connection with this Agreement, Developer agrees to comply with all Applicable Laws, including but not limited to applicable obligations under applicable data protection, data security, and privacy laws including, but not limited to, the General Data Protection Regulation 2016/679 ("GDPR"), (collectively "Data Privacy Laws"). In particular, you agree to:
- Third Party Software. 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 any software provided to you through the Licensed Software and shall not cause any part of the Licensed Software 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.
- Open Source Software. 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.
- No Hacking. You will not, through use of the Developer Services 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 Services or other Samsung software, services or Technology, or enable others to do so.
- No Infringement. You will not and do 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.
- Required EULA. Developer must include terms and conditions for use of the Developer Product by End Users that meet the minimum requirements and include the minimum terms and conditions attached as Exhibit B.
- Use Of Developer Products With Platform.
- Customer Service. As between Samsung and Developer, Developer will be solely responsible for (i) addressing and resolving issues relating to accessing and/or using the Developer Products; (ii) timely investigating and responding to complaints from Developer Product users arising from such issues; and (iii) promptly notifying Samsung of such issues.
- Responsibility For Use Of Developer Products. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to the use of the Developer Products with the Platform. You are responsible for App End Users' use of User Content and the Platform. You will ensure that all App End Users comply with your obligations under this Agreement and that the terms of your agreement with each App End User are consistent with the Platform Terms and this Agreement. If you become aware of any violation of your obligations under this Agreement or the Platform Terms by an End User, you will immediately terminate such End User's access to User Content and the Platform.
- Use With Third Party Products. You understand and agree that you and App End Users' use with the Platform in conjunction with Third Party Products are subject to the continued consent of such third parties, the configurations of the Third Party Products, and the evolution of the Services and the Terms of Service themselves, which may change over time to account for new devices, terms, and pricing models. For example, and without limitation, third parties may in the future attempt set limits or other restrictions on the use of their products with the Services, which may affect you or App End User's ability to access such products using Developer Products.
- 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, the Platform Terms, or violates any applicable law or regulation, we may halt all access by your Developer Product(s) to the Platform.
- Our Use of Data and 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.
- 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 Developer Product 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 Developer Product users to improve the Services, to provide the Services, to 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.
- Your Representations and Warranties. You represent and warrant to Samsung that:
- You are and will be responsible for all use by you, your Authorized Users and your App End Users use of your Developer Product with the Services and their compliance with this Agreement and the Platform Terms.
- 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.
- Your 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.
- 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.
- 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.).
- 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.
- 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.
- 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.
- DISCLAIMER OF WARRANTY. THE SERVICES, UPDATES, 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 SERVICES, 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 SERVICES, 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 SERVICES, UPDATES, OR ANY RELATED MATERIALS OR SERVICES INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR, YOUR AUTHORIZED USERS', APP END USERS, OR DEVELOPER PRODUCT END USERS' COMPUTER SYSTEM, HARDWARE, SOFTWARE OR LOSS OF DATA. FOR THE PURPOSE OF CLARITY, THE SERVICES, 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.
- 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 SERVICES, UPDATES OR OTHER MATERIALS, PRODUCTS OR SERVICES PROVIDED BY SAMSUNG UNDER THIS AGREEMENT, OR YOUR, YOUR AUTHORIZED USERS', APP END USERS’ OR DEVELOPER PRODUCT 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).
- 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, your Authorized User's, or App End Users’ 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 App End User's) use of the Services provided by Samsung under this Agreement or your Developer Product or your (or any Authorized User's or App End Users’) development or distribution of any Developer Product (each a "Claim").
- You acknowledge that the Services are 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 (or your Authorized Users’ or App End Users’) use of the Services in the development or use of any such Developer Products.
- 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 Users’ or App End Users’) use of the Services without the prior written consent of Samsung.
- How This Agreement May Be Terminated.
- Right to Terminate. (a) You can terminate this Agreement immediately by stopping your use of the Developer Services; 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 Developer Services or Platform Services for any reason.
- 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 Developer Services and return the Licensed Software to Samsung or destroy all electronic copies of the Licensed Software, 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.
- Survival. The provisions of Sections 3, 10, 11, 12, 13, 14, and 15 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.
- Right to Suspend. In order for Samsung to improve the Developer Services and/or Platform, Samsung may from time to time monitor and investigate Developer’s use of the Developer Services and/or Platform. Effective immediately upon notice to Developer, Samsung may suspend or terminate Developer’s use of Developer Services if required by Applicable Law or if Samsung determines in its sole discretion that: (i) the number of API calls generated by Developer exceeds the level approved by Samsung; (ii) Developer Product(s) has a vulnerability or security issue or is not in compliance with this Agreement or the Documentation; (iii) Developer has failed to implement updates or upgrades necessary to safeguard End Users as reasonably notified by Samsung; (iv) in the event of a Data Compromise; (v) if Samsung has reason to believe that Developer has breached this Agreement; or (vi) for any other reason that would provide Samsung a right of termination under this Agreement.
- 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.
- 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.
- 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.
- 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:
- 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 "Developer Product Requirements" or "Developer'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 Developer Services as described in the Section entitled "Termination."
- 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.
- Export Control. You may not use, export, re-export, import, sell or transfer the Developer Services or Licensed Software except as authorized by United States law, the laws of the jurisdiction in which you obtained the Developer Services and/or Licensed Software, and any other Applicable Law. In particular, but without limitation, the Developer Services and/or Licensed Software 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 Developer Services, 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 Developer Services for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, chemical or biological weapons.
- US Government End Users. The Licensed Software 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.
- Governing Law; Venue.
- Entire Agreement; Governing Language. This Agreement, along with the Platform Terms, contains the entire agreement between the parties with respect to the use of the Developer Services and Licensed Software 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.
(a) Closed Source Components. The closed source components of the Developer Services 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 2.2 ("Proprietary Components").
(b) Open Source Software Components. The Open Source Software components or those components of the Developer Services 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.
(a) to access, use, and/or reproduce internally the Licensed Software for the sole purpose of creating one or more Developer Products for use with the Platform;
(b) to create derivative works of the Licensed Software as part of a Developer Product that add significant and primary functionality to the Licensed Software;
(c) to reproduce and distribute the Licensed Software as a component of a Developer Product solely to the extent necessary for End Users to use and operate the Developer Product with the Platform; and
(d) to allow End Users to use, perform and display the Licensed Software solely to the extent necessary to allow End Users to use and operate a Developer Product with the Platform.
(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, publish or permit any Developer Service or the Platform for any purpose other than as specified in this Agreement;
(b) use the Services 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 Services, nor for any commercial purposes directly or indirectly disassemble, reverse engineer, tamper with a Samsung Product or any part thereof, or transmit malicious code or improperly collect Personal Information through the Services;
(c) directly or indirectly interrupt the functionality of or tamper with the API, or any servers used in providing the Services, or unreasonably affect others' enjoyment of the Services in any way; or
(d) use the Licensed Software to create any products or services that can be used or operated without the Platform.
These restrictions apply except as prohibited by applicable law and only to the extent of that prohibition.
(a) Developer acknowledges and agrees that Samsung and/or its Affiliates own their Technology and retain all Intellectual Property Rights thereto, including the Services, Documentation, Confidential Information, Updates, Samsung Marks and digital assets and marketing collateral provided by Samsung under this Agreement by Samsung. Samsung acknowledges and agrees that Developer owns its Technology and retains all Intellectual Property Rights thereto, including the Developer Products, Developer Marks and digital assets and marketing collateral provided by Developer under this Agreement.
(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 and 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. In the event that a Party is determined to have acquired any right, title or interest in or to the other Party’s Technology, each Party hereby agrees to assign, and hereby assigns, to the other Party all such acquired right, title and interest in or to the other Party’s Technology and all Intellectual Property Rights thereto.
(a) Samsung Marks. During the Term, and subject to the terms and conditions of this Agreement, Samsung hereby grants to Developer 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 a Developer Product’s acceptance by Samsung and use with the Platform in any and all media (whether now known or hereafter developed). Each use of a Samsung Mark will be subject to Samsung’s prior written approval and in conformance 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) Developer Marks. During the Term, and subject to the terms and conditions of this Agreement, Developer 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 Developer Marks solely to advertise, market and promote Developer’s acceptance of and/or use of the Platform in any and all media (whether now known or hereafter developed). Each use of a Developer Mark will be subject to Developer’s prior written approval. Any and all goodwill associated with Developer Marks that arise in connection with the use hereunder will inure to Developer’s sole benefit.
(c) Restrictions on Use; Compliance with Applicable Laws; Trademark Notices. Samsung and Developer 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 Developer will not (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 in its sole discretion; and (iii) use the other Party’s Marks except as permitted under this Section.
(a) Ensure that any Processing by Developer is on a lawful basis, and, in particular, to the extent required by law, ensure that (i) Developer Processes Personal Information of End Users solely to the extent explicitly approved by the applicable End User in accordance with Applicable Laws and (ii) that Developer Products may not engage in Processing for which an End User's consent has been denied or withdrawn;
(c) Include terms and conditions for use of the Developer Product by End Users that meet the minimum requirements and include the minimum terms and conditions attached as Exhibit B;
(d) Adhere to the applicable data processing terms set forth in Exhibit C;
(e) If your Developer Product offers health information or location information based services or functionality, notify and obtain consent from an individual before the individual's health or location data is collected, transmitted or otherwise used by the Developer Product and comply with any registration process that we may implement;
(f) If your Developer Product captures, collects or records any form of user or device images, pictures, or audio data (collectively "Recordings"), such Recordings 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; and
(g) 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." 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.
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.
(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 Developer's educational institution is domiciled, except that body of state law concerning conflicts of law; and (b) any litigation or other dispute resolution between Developer and Samsung arising out of or relating to this Agreement, the Developer Services, or your relationship with Samsung will take place in federal court within the Northern District of California, and Developer 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 Developer's educational institution is domiciled. 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.
END OF DEVELOPER LICENSE AGREEMENT; EXHIBITS TO FOLLOW.
As provided in Section 6.8 of the Agreement, if an Application engages in Processing in connection with the Platform, Developer agrees to the following additional terms and conditions. Unless otherwise noted, all capitalized terms shall have the same meaning as those set forth in the Agreement.
- Data Protection Program. Developer will protect the confidentiality, integrity, and availability of Personal Information through various measures, which will include, at a minimum, the following:
- Developer 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;
- Developer will provide an appropriate level of supervision, guidance, and training on its safeguards to anyone acting on its behalf who Processes Personal Information;
- Developer will maintain controls appropriate to limit access to, or Processing of, 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. Developer 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, which such logs will be maintained in accordance with industry-standard retention policies. Developer 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. Developer will be responsible for containing and remediating any unauthorized access to Personal Information under Developer’s custody or control; and
- Data Compromise. Developer will maintain an incident response program designed to respond to any Data Compromise associated with or involving the Application. If a Data Compromise has occurred, or if Developer has reason to believe that any security measure included in the software or hardware relevant to the Application has been breached and that the Platform or any End User could be affected, Developer will, subject to Applicable Laws, promptly notify Samsung of the Data Compromise. In the event of such a Data Compromise, Developer 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 Developer, to prevent a recurrence of such Data Compromise; and (iii) take or, at Samsung’s request, assist Samsung in taking all remediation efforts that are required by Applicable Law 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 Developer or Samsung or both. Such remediation efforts may include without limitation (a) investigation of such Data Compromise, (b) development and delivery of notices to End Users whose Personal Information may have been affected; (c) establishment of a toll-free telephone number or numbers (or where not available, a dedicated telephone number or numbers) where affected End Users may receive individual-specific 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 commensurate with the nature and level of severity of the Data Compromise (with such other measures being referred to as "Additional Reasonable Remediation Measures"). Developer shall be solely responsible for the costs and expenses of all remediation measures whether undertaken by Developer or Samsung. Developer 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, if disclosure is compelled by Applicable Laws, Developer will use commercially reasonable efforts to obtain Samsung’s approval regarding the content of such disclosure to minimize any adverse impact to Samsung.
EXHIBIT B TO THE SAMSUNG ARTIK CLOUD DEVELOPER LICENSE AGREEMENT: Minimum EULA Terms and Conditions For Applications.
As provided in Section 6.13 of the Agreement, if an Application is expected to be made available for use by App End Users, your End User License Agreement ("EULA") for the Application will include the following minimum terms and conditions. Unless otherwise noted, all capitalized terms shall have the same meaning as those set forth in the Agreement.
- Your EULA must:
- Comply with all applicable laws in all countries where App End Users will purchase or download the App.
- Provide that you and the App End User acknowledge that the EULA for your Application is solely between you and the App End User, and that Samsung will not be responsible for, and Samsung will not have any liability whatsoever under any EULA for any breach by you or any App End User of any terms and conditions of your EULA.
- Provide for usage rules for the Application that are at least as restrictive as any usage rules provided by Samsung through the Platform or the accompanying website.
- Inform App End Users and require your App End Users to acknowledge that you are solely responsible for providing any maintenance and support services for your Application and/or associated products or services, and that Samsung has no obligation whatsoever to provide any maintenance or support services for your Application or associated products or services.
- Make you solely responsible for any product warranties. The EULA must also provide that, if the Application or associated products or services do not conform to any applicable warranty, to the maximum extent permissible by law, Samsung will have no warranty obligation whatsoever with respect to the Application, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be your sole responsibility.
- Provide that you, not Samsung, are responsible for addressing any claims of any App End User or any third party relating to or arising from the Application or associated products or services or the App End User's possession or use of such Application, including but not limited to any claims that the Application or associated products or services infringes any third party's intellectual property rights, claims arising under any consumer protection, FDA or any other legal or regulatory requirement.
- Require the App End User to represent and warrant that they are 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 they are not listed on any U.S. Government list of prohibited or restricted parties.
- Provide your name, address and contact information (telephone number and email address) for App End Users to contact you with questions, complaints and/or claims with regard to the Application or associated products or services.
- Provide that Samsung and its affiliates are third party beneficiaries of your EULA, and upon the App 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 App End User as a third party beneficiary.
- In addition, you acknowledge and agree to the following terms and conditions.
- You agree to allow App End Users to review your EULA before or at the time your Application is delivered to your App End User.
- You agree to allow us to notify App End Users that their use of your Application is subject to the terms and conditions of your EULA.
- You agree that if you do not furnish a EULA to App End Users, each App End User's use of your Application and associated products or services is subject to our standard App EULA.
EXHIBIT C TO THE SAMSUNG ARTIK CLOUD DEVELOPER LICENSE AGREEMENT: Data Processing Terms re: End User Personal Information.
This Exhibit C to the ARTIK Developer Data Processing Agreement sets forth additional terms and conditions relating to the Processing of End User Personal Information. Unless otherwise noted, all capitalized terms shall have the same meaning as those set forth in the Agreement.
- Additional Definitions. This Exhibit C uses the following additional defined terms.
- "Application Processing" means Developer, Third Party, and/or Platform Application Processing.
- "Developer Application Processing" means Processing of Shared End User Personal Information in response to an Application API.
- "Third Party Application Processing" means Processing of Shared End User Personal Information in response to or in connection with Third Party Application APIs.
- "Account Processing" means Processing to create, maintain, and manage End User Accounts and Authorizations.
- "Platform Application Processing" means Processing in response to or in connection with a Platform User’s use of a Platform Application.
- "End User Authorization" means an End User’s authorization to Application Processing.
- "Data Controller" means a person who alone or jointly with others determines the purposes and means of the Processing of Personal Information.
- "Data Processor" means a person who Processes Personal Information on behalf of a Data Controller.
- "End User Account" means a SAMSUNG ARTIK Account that is created and maintained by Samsung to provide Processing in connection with an End User’s use of an Application and/or the Platform.
- "Shared End User Personal Information" means the Personal Information for which an End User has authorized Application Processing.
- "Sub-Processor" means the entity engaged by the Data Processor or any further Sub-Processor to Process Personal Information on behalf and under the authority of the Data Controller.
- Application of these Terms. These Data Processing Terms will only apply to the extent that the GDPR applies to the processing of the Personal Information at issue.
- Roles and Restrictions on Processing.
- Roles. The Parties acknowledge and agree that for the purpose of the Agreement, the Parties shall play the following roles with respect to Personal Information contained therein:
- Restrictions on Processing. Section 3.1 will not affect any restrictions on either party’s rights to use or otherwise Process End User Personal Data under the Agreement.
- Terms Where Samsung Is Providing Application Processing.
- Obligations. When Samsung is providing Developer Application Processing, Samsung agrees to:
- Compliance with Applicable Laws.
- Data Security.
- Audit. Samsung will make available to the Developer, for inspection on Company premises only, the information necessary to demonstrate compliance with the obligations set out in this section 4 of Exhibit C and allow for and contribute to audits conducted by the Developer or another auditor mandated by the Developer and approved by the Developer, provided that the Developer gives Samsung at least 30 days’ prior written notice of its intention to carry out an audit, such notice to include a detailed work plan for the audit. Any third party involved in the audit must agree to confidentiality undertakings and the Developer will bear all costs and expenses incurred by Samsung in connection with the audit.
- Limitation of Liability. Samsung shall not be liable in any circumstances in respect of (i) any claim or claims made by Data Subjects for compensation arising solely out of or in connection with the Developer’s violation of the requirements of Applicable Law, or (ii) any fine or penalty levied by a court or supervisory authority against the Developer arising solely out of or in connection with the Developer’s violation of the requirements of Applicable Law.
- Data Transfers.
(a) For Developer Application Processing, Developer is the Data Controller and Samsung is the Data Processor.
(b) For Third Party Application Processing, the third party offering the Application is the Data Controller and Samsung is the Data Processor.
(c) For Account and Platform Application Processing, Samsung is the Data Controller.
(a) Provide it only on behalf of and in accordance with the instructions of the Developer, unless Samsung is otherwise required by Applicable Law to undertake Processing, in which case, unless prohibited by law, Samsung will inform the Developer of that legal requirement before commencing such Processing. Samsung will immediately inform the Developer if, in Samsung’s opinion, an instruction provided infringes Applicable Law.
(b) Hold in strict confidence any and all App End User Personal Information in accordance with the applicable App End User’s Authorization(s).
(c) Ensure that internal access is granted to App End User Personal Information solely on a need-to-know basis, and that all personnel involved in the Processing are subject to an enforceable contractual or statutory duty of confidentiality.
(d) Inform the Developer promptly of any formal request from App End Users exercising their rights under the GDPR and not to respond to such requests on behalf of the Developer unless authorized by the Developer in writing to do so. Samsung will provide appropriate and reasonable support to the Developer in fulfilling the Developer’s obligations to respond to such requests from App End Users in respect of their Personal Information. Notwithstanding the foregoing, Developer accepts and agrees that App End Users may seek to exercise their rights under the GDPR through the use of a Platform Application or a Third Party Application, and nothing herein shall limit Samsung from responding to such requests, including but not limited to use of automated processes offered by the Platform Application.
(e) Assist the Developer in complying with its obligations under Applicable Law, in particular the Developer’s obligation to implement appropriate Data Security Measures, to carry out a data protection impact assessment, and to consult the competent supervisory authority.
(f) Implement appropriate technical and organisational measures to help ensure a level of security for App End User Personal Information appropriate to the level of risk associated with the Processing.
(g) Notify the Developer without undue delay after becoming aware of a Data Breach concerning App End User Personal Data. Samsung will make reasonable efforts to assist the Developer in fulfilling the Developer’s obligation to notify the relevant supervisory authority and Data Subjects of a Personal Information Breach under Articles 33 and 34 of the GDPR.
(a) The Developer agrees to Samsung’s use of Sub-Processors for the carrying out of specific activities on behalf of Developer under the Developer Services Agreement. Samsung will enter into written agreements with all Sub-Processors that impose the same obligations on the Sub-Processors as are imposed on Samsung under these Data Processing Terms.
(b) At least 14 days before authorising any new Sub-Processor to access App End User Personal Information in connection with this Agreement, Samsung will provide the Developer with notice of the appointment of that Sub-Processor. If the Developer objects to the engagement of that new Sub-Processor, Samsung will use its best endeavours to carry out the Processing of the App End User Personal Information without engaging the Sub-Processor to whom the Developer has objected.
(a) The parties will comply with all Applicable Laws.
(b) Samsung represents and warrants that no Applicable Law or legal requirement, or privacy or information security enforcement action, investigation, litigation or claim prohibits Samsung from fulfilling its obligations under this Agreement.
(a) Subject to End User Authorization, Samsung shall retain App End User Personal Information that is stored in Samsung’s systems in an account for 30 days after the expiration or termination of the Agreement, so that the Developer may extract the data. After the 30 day retention period ends, Samsung will disable the Developer’s account, and except for information necessary for Account Processing, App End User Personal Information associated with the Developer Application Processing will be deleted.
(b) Where Applicable Law or End User Authorization does not permit Samsung to comply with the delivery or destruction of the App End User Personal Information, Samsung warrants that subject to End User Authorization, it will ensure the confidentiality of the App End User Personal Information and that it will not use or disclose any App End User Personal Information after the termination of the Agreement.
(a) Data Storage and Processing Locations. Developer understand and agrees that App End User Personal Information will be Processed and stored by Samsung and/or its Affiliates using servers hosted by AWS located in the United States and South Korea.
(b) Transfers of Data Out Of The EEA. If Developer is located in the EEA, and Samsung’s Developer Application Processing involves the transfer of App End User Personal Information out of the EEA, and the GDPR applies to the transfers of such data ("Transferred App End User Personal Information"), the Parties agree as follows.
(i) Samsung will, if reasonably requested to do so by Developer, ensure that Samsung, as the data importer of the Transferred App End User Personal Data, enters into Model Contract Clauses with Developer as the data exporter of such data; that the transfers are made in accordance with such Model Contract Clauses; and that notwithstanding any term contrary to the Agreement, any disclosure of App End User Personal Information and any notifications relating to any such disclosures, will be made in accordance with such Model Contract Clauses.
(ii) Developer will, if requested to do so by Samsung, ensure that Developer as the data exporter of the Transferred App End User Personal Data, enters into Model Contract Clauses with Samsung as the importer of such data, and take any other action (which may include execution of documents) strictly required to give full effect to such solution.
END OF EXHIBITS TO DEVELOPER LICENSE AGREEMENT