KNOX Customization License Agreement (“Agreement”)
Samsung Electronics Co., Ltd. (“Samsung”)
the company described in the registration form ( “Licensee”)
PLEASE CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY CLICKING “ACCEPT” OR OTHERWISE LOADING OR USING ANY SOFTWARE OR DOCUMENTATION PROVIDED UNDER THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT WISH TO SO AGREE, DO NOT FURTHER PROCEED OR CLICK “ACCEPT”, OR COPY, INSTALL, OR USE THE SOFTWARE OR DOCUMENTATION. IF YOU ARE AN AGENT OR EMPLOYEE OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT BY CLICKING “ACCEPT” OR OTHERWISE LOADING OR USING THE SOFTWARE OR DOCUMENTATION.
“Activate” means to (i) enable Licensed Software to operate in Samsung Products and (ii) permit Applications to make valid, authorized API calls for the Published API in such Samsung Products, after Samsung checks the validity of License Key.
"Activation" means a process to Activate.
"Affiliate" shall mean any corporation or other entity that is controlled by, or is under common control with a party (a corporation or other entity shall be deemed to control another if it owns or controls more than fifty percent (50%) of the voting stock or other ownership interest of the corporation or entity).
"Application" means a software program developed by Licensee for specific use with the Samsung Products, including, in respect of such software programs, all bug fixes, enhancements, modifications, new releases, new versions, revisions, supplements, updates and upgrades.
"Authorized Users" means Licensee’s employees or other authorized contractors who have written and binding agreements with Licensee to protect the unauthorized use and disclosure of Samsung’s and other third party Confidential Information (to the extent they will have access to such Confidential Information).
"Change of Control" means the failure at any time of the current majority shareholders of the Licensee, to own, legally and beneficially, directly or indirectly, free of all liens, controlling shares of the Licensee and/or to appoint a majority of the directors of Licensee.
"Confidential Information" has the meaning given in Section 11.
“Custom Binary” means a customized firmware binary as provided by Samsung to only meet Licensee’s requirements, including any Updates that Samsung may provide or make available. “Customer” means the final purchaser of the Finished Products.
"Customization SDK" means KNOX Customization SDK, which includes the APIs, applications, Documentation, data, files, libraries, materials, IDE (Integrated Development Environment), Sample Code, software (source code and object code), simulators, and tools provided or made available to Licensee by Samsung pursuant to this Agreement for use in connection with the development of Applications, including any Updates that Samsung may provide or make available.
"Documentation" means any technical specifications and other specifications or documentation that Samsung may make available or provide to Licensee relating to or for use of the Licensed Software. “End Users” mean any individuals who use the Finished Products.
"Enterprise SDK" means Samsung Enterprise SDK (KNOX Standard SDK), which includes the APIs, applications, Documentation, data, files, libraries, materials, IDE (Integrated Development Environment), Sample Code, software (source code and object code), simulators, and tools provided or made available to Licensee by Samsung pursuant to this Agreement for use in connection with the development of Applications, including any Updates that Samsung may provide or make available.
“Finished Product” means an end product that is finally produced by License with an Application for sale to Customer which may integrate Samsung Products as a hardware platform.
“Intellectual Property Rights” or “IPR” means any patents and patent applications, design rights, copyrights, database rights, utility models, mask works, trademarks, domain names, know-how and trade secrets and any other intellectual property rights or any rights of a similar nature including divisions, continuations, renewals, re-issuances and extensions of the foregoing now existing or hereafter filed, issued or acquired.
“Licensed Software” means any software that are provided and licensed to Licensee under this Agreement, including the SDK and Custom Binary (if provided and licensed to Licensee in accordance with the Supplementary Addendum). For clarity, only limited Samsung Products support the Licensed Software and Licensee must check the availability of the Licensed Software for their target device with Samsung before entering into any commercial arrangements in respect of Applications and/or Finished Products.
"License Key" means a license key issued to Licensee with which Licensee may make Activation on duly purchased Samsung Products.
(a) “Development License Key” means a type of License Key that is issued to Licensee for the limited purpose of internal development of Finished Products in accordance with this Agreement.
(b) “Commercial License Key” is another type of License Key that is issued to Licensee for commercialization of Finished Products in accordance with this Agreement.
"Open Source Software" means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Sun Industry Standards License (SISL); (g) the BSD License; and (h) the Apache License.
"Published API(s)" means the documented Application Programming Interface(s) contained in the Samsung Products.
“Relevant Samsung Affiliate” means a Samsung Affiliate that Licensee has entered into the Supplementary Addendum with.
"Sample Code” means the software marked as “sample” or delivered in a folder marked “sample” that may be included as a part of the SDK. Sample Code may be in source code or object code format. “Samsung Products” means any smart phone and tablet products developed and manufactured by Samsung, that are “Samsung” branded.
“Samsung SLM” means the software license management (SLM) owned and operated by Samsung and/or its Affiliates.
“Services” mean any services that Samsung and/or Relevant Samsung Affiliate actually provide to the Licensee under this Agreement, which shall be specified in the Supplementary Addendum. “SOW” means a statement of work executed by Relevant Samsung Affiliate and Licensee in the form of Exhibit C, which is attached to a Supplementary Addendum, and forms a part of the Supplementary Addendum.
“Supplementary Addendum” means an addendum to this Agreement executed by Relevant Samsung Affiliate and Licensee in the form of Exhibit A, including any SOW that are attached thereto, which specify, if any, the provision of Custom Binary and Services by Samsung and/or Relevant Samsung Affiliate to Licensee.
"Term" means the term of this Agreement as specified in Section 1. “Territory” means the countries listed in Supplementary Addendum.
"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, or
(b) any software placed in the public domain and accessible to anyone without any specific license terms attached thereto, or
(c) any software disclosed or distributed under a license that permits users to use, modify, improve or distribute such software and/or documentation and requires any or all of the following:
i. the making available of source code, object code and/or accompanying documentation of the software or any modifications to, or derivatives of, such software and/or documentation; or
ii. the granting of the right to distribute, use, create modifications to, or create derivative works from, such software and/or documentation at no charge or on a royalty-free basis.
(d) any software licensed under the Academic Free License, Apache Software License, the Artistic License (e.g., PERL); Berkeley Software Distribution License; Eclipse Public License; GNU’s General Public License; GNU’s Lesser/Library GPL; MIT License; the Mozilla Public License; the Python License, the Sleepy Cat license, the Sun Community Source License; or licenses approved by the Free Software Foundation or the Open Source Initiative.
"Updates" means, in respect of software or any part thereof, bug fixes, enhancements, modifications, new releases, new versions, supplements, updates or, upgrades.
2. General; Scope of this Agreement
This Agreement set forth the terms and conditions under which Samsung provides Licensed Software and Services to Licensee for Licensee’s production of the Finished Products. The Supplementary Addendum executed between Relevant Samsung Affiliate and Licensee, which forms a part of this Agreement, supplements this Agreement by specifying (i) if any, Custom Binary and Services to be provided by Samsung and/or Relevant Samsung Affiliate to Licensee; (ii) the amount of fees paid by Licensee to Relevant Samsung Affiliate and payment terms therefore. Relevant Samsung Affiliate and Licensee may agree to additional terms and conditions to supplement this Agreement, but the terms of this Agreement shall, except as otherwise expressly set forth in this Agreement, precede the terms of Supplementary Addendum. Samsung hereby authorize Relevant
Samsung Affiliate to make, execute and deliver the Supplementary Addendum only to the foregoing extent.
This Agreement is effective as of the date (the “Effective Date”) on which this Agreement is electronically signed or accepted by Licensee or otherwise Licensee loads or uses any software or documentation provided under this Agreement. The term of this Agreement commences on the Effective Date and continues effective for two (2) years unless terminated earlier by Licensee or Samsung in accordance with Section 17 ("Term"). Unless a party sends the other party a notice of termination 30 days before the end of the Term (or the extension thereof), this Agreement shall be automatically renewed for additional one year periods.
4. Grant of License
4.1 Grant of License for SDK. Subject to Licensee’s full compliance with the terms of this Agreement and Samsung’s issuance of the applicable License Key in accordance with Section 5, Samsung hereby grants Licensee a limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable license during the Term to:
(a) install a reasonable number of copies of the SDK on computers that Licensee own or control, for use internally by Licensee and Authorized Users solely for the purpose of developing or testing Applications; and
(b) make a reasonable number of copies of the Documentation and distribute such copies to Authorized Users for use internally and solely for the purpose of developing or testing Applications.
4.2 Grant of License for Custom Binary. Subject to Licensee’s full compliance with the terms of this Agreement and Samsung’s issuance of the applicable License Key in accordance with Section 5, Samsung hereby grants Licensee a limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable license during the Term to:
(a) install the Custom Binary in Samsung Products for the purpose of producing the Finished Products in accordance with the terms of this Agreement; and
(b) subject to Samsung’s issuance of the Commercial License Key, distribute the Custom Binary as an integral part of Finished Products to Customer in the Territory.
For clarity, this Section 4.2 only applies if Samsung agrees to provide Custom Binary under Supplementary Addendum.
5. Issuance of License Key
5.1 Issuance of Development License Key. Subject to Licensee’s full compliance with this Agreement, Samsung may issue a limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable Development License Key via Samsung SLM in accordance with the internal license management procedures as provided by Samsung from time to time, for the sole purpose of internal development of Finished Products by the Licensee.
5.2 Issuance of Commercial License Key. Subject to Licensee’s compliance with this Agreement, and promptly following Licensee’s submission of Purchase Order in accordance with Section 8.1 after Licensee’s execution of Supplementary Addendum with RSA, Samsung may issue a limited, non-exclusive, personal, revocable, non-licensable and non-transferable Commercial License Key via Samsung SLM in accordance with the internal license management procedures as provided by Samsung from time to time, for the sole purpose of commercialization of Finished Products by the Licensee.
5.3 Management of the License Key. Licensee acknowledges and agrees that the Licensee will use the License Key solely for the purposes of the development and commercialization of Finished Products. Furthermore, the Licensee shall:
(a) not share, distribute or otherwise disseminate the License Key to any party other than the Licensee or its Authorized Users;
(b) not use the Development License Key on more than one hundred (100) devices at any one time; and
(c) safeguard the License Key and treat them with the same care given to its own trade secrets.
5.4 Activation Support. Licensee shall use a PC application and related documentations to be provided or be made accessible through a designated website by Samsung for Activation. Upon receipt of such application and documentation, Licensee shall use the application solely for the purpose of the Activation in strict compliance with the documentations.
5.5 Collection of data. License acknowledges and agrees that, in using the PC application described in Section 5.4, the following information regarding Samsung Products that you wish to Activate will be provided to Samsung for the purpose of Activation and validation of License Key, improving the KNOX Customization software and service, and/or statistical or demographic analysis: License Key, “IMEI”, “Serial Number” or ” MAC address” in hashed form, MODEL description, Android OS Version, Build Number, SDK Version, SDK APIs usage time / frequency, Package name / version / APK files (in hashed form) of the Application which use SDK, MCC (Mobile Country code) / MNC (Mobile network code), Country ISO code, CSC (customer software configuration) code, Client time zone.
Licensee shall strictly comply with the following in using the Licensed Software. The licenses granted under Section 4 and 5 are subject to Licensee’s full compliance with this Section 6 as well as any other terms of this Agreement.
(a) Licensee must ensure that the Samsung copyright disclaimers and other proprietary notices that appear in the Licensed Software and Documentation are retained and reproduced in full in all copies of the Licensed Software and Documentation that Licensee makes as permitted under this Agreement.
(b) Licensee must not use the Licensed Software or License Key for any purpose that is not expressly permitted under this Agreement. Licensee must not sell, redistribute, rent, lease, lend or sublicense all or any part of the Licensed Software or License Key, or enable or allow others to do such things. Licensee must not copy (except as expressly permitted under this
Agreement), redistribute (except as expressly permitted under this Agreement), modify, adapt, decompile, reverse engineer, disassemble, or create derivative works of the Licensed Software or License Key or any part thereof, or enable or allow others to do such things. The foregoing restrictions apply except as prohibited by applicable law and only to the extent of such prohibition.
(c) Licensee must not exploit the Licensed Software or License Key in any unauthorized way or for any illegal action, including but not limited to, by way of trespass or burdening network capacity. Any attempt to do so constitutes a violation of the rights of Samsung and its third party licensors.
(d) Samsung may, at any time without notice, extend, enhance, or otherwise modify the Licensed Software. If Samsung makes available Updates, such Updates will be governed by this Agreement (unless a separate license is provided with the Update, in which case the terms of that license will govern the Update) and Licensee shall immediately cease using the outdated version of the Licensed Software and apply the Updates for all development and commercial use. Licensee acknowledges that Samsung has no obligation, whether express or implied, to announce or make available any Updates. Where an Update is made available, such Update may have APIs, features, services and/or functionality that are different from those found in the Licensed Software licensed under this Agreement. For clarification, Samsung shall not be responsible for any errors, problems and whatsoever caused by the Licensed Software or any Updates thereof.
(e) From time to time during the Term, Samsung may provide Licensee with test versions of the Licensed Software. Licensee acknowledge and agree that Licensee must not rely on such test versions to perform in the same manner as a final-release commercial-grade product and Licensee must not use such test versions with data that is not sufficiently backed up on a regular basis.
(f) Only limited Samsung Products support the Licensed Software. Licensee must check the availability of the Licensed Software for their target device with Samsung before entering into any commercial arrangements in respect of Applications and/or Finished Products.
7.1 Customer Support. Licensee acknowledges and agrees that Licensee shall be solely responsible for providing Customers with maintenance support for their use of the Finished Products and handling customer complains in relation to the Finished Products in accordance with applicable law and Samsung has no obligation to provide any support or service to Customer. Licensee further acknowledges and agrees that Samsung service centers may refuse to provide any services for the Finished Products depending on warranty policies and Samsung has no obligation to provide any software Update for the Finished Products, including, without limitation, maintenance releases of operating systems or any other embedded software or any Update for Custom Binary.
7.2 Technical Support. Samsung may provide Services, if any, as agreed in the Supplementary Addendum. Notwithstanding anything to the contrary in the Supplementary Addendum, Services provided by Samsung and/or Relevant Samsung Affiliates hereunder shall be limited to the restoration of the Custom Binary in Samsung Products during the one (1) year period commencing on the date Custom Binary is finally accepted by Licensee. Except as expressly set forth in this
Agreement, Samsung has no obligation to provide any technical or maintenance support or other services in any way whatsoever for the Finished Products, Licensed Software or Samsung Products.
8.1 Purchase Order. Licensee shall submit purchase orders (“Purchase Order”) for Commercial License Key via Samsung SLM, or by other methods or in other forms as Samsung may prescribe in its sole discretion, specifying the quantity of Samsung Products on which Licensee wishes to make Activation and other information as may be required by Samsung. In the event Custom Binary is provided to Licensee, the applicable Purchase Order shall be placed by Licensee no later than the PO Submission Date defined in Supplementary Addendum or SOW for the applicable quantity agreed thereto. In the event of a conflict between any term or provision of this Agreement and any Purchase Order, this Agreement shall control. In the event of a conflict between any term or provision of Supplementary Addendum and any Purchase Order, the Supplementary Addendum shall control. No provision of any Purchase Order or other written or verbal communication between the Parties shall be effective to add this Agreement or Supplementary Addendum except by signed, mutual written agreement of the Parties.
8.2 Payment and Billing. Licensee shall pay to Relevant Samsung Affiliate such fees (“Fees”) as specified in the Supplementary Addendum and the Purchase Order. Except otherwise set forth in the Supplementary Addendum, License shall pay the Fees in accordance with the payment terms set forth in this Agreement.
8.3 Acceptance. No Purchase Order shall be binding upon Samsung until accepted by Samsung in writing (which may be provided via email).
8.4 Currency. Except as otherwise set forth in the Supplementary Addendum, all payments and costs payable hereunder to Samsung shall be paid in the US Dollars.
8.5 Late Payment; Credit Policies. Except as otherwise set forth in the Supplementary Addendum, a late payment charge of LIBOR +1% will be charged upon all unpaid amounts that are due hereunder for more than thirty (30) days. Acceptance of late payment in any given instance will not obligate Samsung to accept late payment on other occasions.
8.6 Tax. Except as otherwise set forth in the Supplementary Addendum, each party shall be responsible for its own taxes, duties, excises, assessments, permits or fees, however designated and whether federal, state, local or national, which are levied upon each Party in connection with this Agreement or the Software and services hereunder, or their use.
9. Obligations and Responsibilities
9.1 Compliance with Law. Licensee will comply with all applicable laws and regulations in connection with this Agreement. Licensee shall ensure that the Finished Products and Applications comply with all applicable laws and regulations, including, without limitation, the laws and regulations of any jurisdiction where the Applications are offered or made available, and Samsung’s internal policies and regulations. Before Finished Products and/or Applications are available to Customer or the public, Licensee shall obtain all required and necessary permissions and/or approvals from relevant government authorities.
9.2 Recordings and Transmissions. If an Finished Product and/or Application captures, collects or records any form of user or device data, images, pictures or voice data (collectively "Recordings"), or processes, maintains, uploads, syncs, or transmits any form of user data, content or information (collectively "Transmissions"), such Recordings and Transmissions must comply with all applicable laws and regulations (including but not limited to privacy laws) as well as any Samsung’s internal policies or requirements in relation to such matters (including but not limited to any notice or consent requirements). In particular, Licensee must ensure that a reasonably distinctive and conspicuous visual indication that a Recording is taking place is displayed to the user.
9.3 Privacy and Data Protection. In respect of any Finished Products and/or Application that uses location-based APIs or that collect, transmit, maintain, process, share, disclose or otherwise use personal information or location or other data relating to a user ("User Information Handling"), Licensee must comply, and the Application and/or Custom Binary must be compliant, with all applicable privacy and data collection laws and regulations with respect to such User Information Handling. Licensee must not design or market Applications and/or Custom Binary for the purpose of violating any legal rights of any person (including but not limited to privacy rights). Without limiting the generality of the foregoing, Licensee must ensure that any Finished Product and/or Application that offers location-based services or functionality notifies and obtains consent from an individual before the individual’s location data is collected, transmitted or otherwise used by the Application and/or Custom Binary.
9.4 No Emergency Purposes. Licensee agrees and acknowledges that the SDK and Custom Binary are not intended to be used in where death, personal injury, or severe physical or environmental damage could result from errors or inaccuracies in the content, data or information. Licensee shall not sell, distribute or use the Finished Product and/or Application for nuclear energy equipment, air traffic control, the operation of communication system, public transportation control, life support devices, medical devices or other purposes that may cause deaths, injuries or severe physical or environmental losses in the event that the Finished Product and/or Application fails to perform properly. In addition, Licensee shall ensure that Finished Products and Applications, MUST NOT BE USED FOR ANY EMERGENCY OR LIFE SAVING PURPOSES DUE TO POTENTIAL INACCURACY of the location-based APIs in the Published APIs or Custom Binary that provides real-time route guidance. Licensee shall incorporate in any Finished Product and/or Application that provides location-based services, the following notice: "REAL TIME LOCATION DATA ACCESSED VIA THIS PRODUCT OR APPLICATION MAY BE INACCURATE OR INCOMPLETE. LICENSEE’S USE OF THIS APPLICATION IS AT ITS SOLE RISK."
9.5 Third Party Software. If a Finished Product and/or Application includes any Third Party Software, Licensee ensure that (i) it complies with all licensing terms applicable to such Third Party Software; (ii) it has the right to license such Third Party Software; (iii) the Third Party Software does not infringe any intellectual property rights of any this party. Licensee shall separate the portion of the Third Party Software from the portion of the SDK and the Custom Binary and shall not cause the portion of the SDK, the Custom Binary, 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). Licensee shall indemnify, defend and hold harmless Samsung 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 its use of Third Party Software.
9.6 Objectionable Contents. Finished Products and Applications shall not contain content, materials, text, graphics, images, photographs, or sounds of any kind that are objectionable (for example, materials that may be considered obscene, pornographic or defamatory).
9.7 Open Source Software. Licensee shall not incorporate any Open Source Software into, or combine any Open Source Software with, the Application provided to Samsung for preload in Custom Binary. If Open Source Software are embedded into the Application: (A) Licensee will (i) identify all Open Source Software and provide Samsung with all license terms applicable to such Open Source Software; (ii) comply with all requirements set forth in such license terms; and (iii) unless otherwise expressly agreed in writing by Samsung, will not modify such Open Source Software; and (B) Licensee shall indemnify, defend and hold harmless Samsung 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 Licensee’s breach of this Section 9.7.
9.8 IPR Infringement. Licensee represents and warrants that any Application provided to Samsung for preload in Custom Binary or any use thereof will not infringe any Intellectual Property Rights of a third party including without limitation any patents, copyrights, trademarks and trade secrets. Licensee shall indemnify, defend and hold harmless Samsung 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 Licensee’s breach of this Section 9.8.
9.8 Virus. Licensee shall ensure that any Application provided to Samsung for preload in Custom Binary, does not contain any virus or any other contaminant, including but not limited to codes, commands or instructions that may alter, delete, erase, damage, disable, disrupt or otherwise interfere with the use of any software, data or information.
9.9 Labeling. Licensee shall, in all correspondence or other dealings relating to or concerning the Finished Products, clearly label the Finished Products under Licensee’s own trademark and brand and shall not represent or otherwise indicate that the Finished Products are Samsung products or Licensee is acting as a reseller or distributor of Samsung.
9.10 Legal Manufacturer. Licensee shall act as the manufacturer, producer, or primary brand owner for the Finished Products, for the purposes of complying with all applicable national, federal, state, and local laws, ordinances and regulations now or hereafter enacted.
9.11 Waiver Agreement. Upon request of Samsung, Licensee shall provide Customer with a copy of Consent and Waiver Agreement a form of which is attached hereto as an Exhibit B and ensure that Customer agrees to the terms and conditions thereof prior to any sales and distributions of the Finished Products to Customer and provide the executed copy to Samsung;
9.12 Export Control. Licensee shall comply with all applicable export statutes, rules and regulations of any governmental authority having jurisdiction and shall obtain all necessary permits, licenses and consents of governmental authorities necessary for the provision, distribution, or sale of Finished Products and Applications contemplated under this Agreement.
10. Representation and Warranties
Licensee represents and warrants to Samsung and agrees that
(a) Licensee has the requisite corporate authority to enter into this Agreement and perform its obligations under this Agreement, and this Agreement does not conflict with any other agreement or obligation by which it is bound;
(b) Licensee is and will be responsible for the Authorized Users’ use of the SDK and/or the Custom Binary and their compliance with this Agreement;
(c) Licensee will be solely responsible for all activities Licensee and the Authorized Users undertake in connection with the SDK, the Custom Binary, Applications, and Finished Products; (d) Licensee shall comply with all applicable laws, regulations, those similar in nature, order or judgment of any court order or other agency of government;
(e) the Finished Products or Application, any use thereof will not infringe any third party’s Intellectual Property Rights; and
(f) in performance of its obligations under this Agreement, Licensee will comply with all applicable commercial and public anti-bribery laws, including, without limitation, the U.S. Foreign Corrupt Practices Act of 1977 (“Anti-Bribery Laws”), which prohibits corrupt offers of anything of value, either directly or indirectly, to a government official to obtain or keep business or to secure any other improper commercial advantage. “Government officials” include any government employee; candidate for public office; and employee of government-owned or government-controlled companies, public international organizations, and political parties.
11. Confidentiality and Press Release
11.1 Definition of Confidential Information. "Confidential Information" means any and all technical and non-technical information disclosed by Samsung (“Disclosing Party”) to Licensee (“Receiving Party”) under this Agreement and related to the past, present or future business or technology of the Disclosing Party, including without limitation, information constituting or concerning research, development, processes and methodologies; product architecture, designs and specifications; contents, whether human-readable or machine-readable; product, marketing, sales and business development plans and strategies; competitive analyses; financial analyses and forecasts; cost and pricing data; procurement requirements and vendor information; customers and prospects; licensing and distribution arrangements; and third party information that the Disclosing Party is obligated to maintain in confidence. In addition, Confidential Information shall include the SDK, Published API, Sample Code, Custom Binary, License Key, flashing tool, Documentation, and Samsung SLM, and any other software, hardware and technical information provided by Samsung under this Agreement. Notwithstanding the foregoing, Confidential Information does not include: (i) information that is generally and legitimately available to the public through no fault or breach by Licensee, (ii) information that Samsung makes generally made available to the public, (iii) information that Licensee independently develops without use of any Confidential Information, (iv) information that Licensee lawfully obtains from a third party who had the right to transfer or disclose the information to Licensee without limitation, or (v) any Open Source Software included in the SDK, the licensing terms of which do not contain obligations of confidentiality.
11.2 Obligations Licensee must protect Confidential Information using a degree of care that is no less than that which Licensee uses to protect Licensee’s own confidential information of the same or similar importance (and in any event, no less than a reasonable degree of care). Licensee may use Confidential Information solely for the purpose of exercising Licensee’s rights and performing Licensee’s obligations under this Agreement and shall not use the same except as expressly permitted under this Agreement. Licensee must not use Confidential Information for any other
purpose, or for Licensee’s own or any third party’s benefit, without the prior written consent of Samsung. Licensee may disclose Confidential Information to the extent required by law, provided that Licensee takes reasonable steps to notify Samsung of the relevant requirement prior to disclosing the Confidential Information and Licensee takes reasonable steps to obtain protective treatment against disclosure of the Confidential Information.
11.3 Publication. Licensee must not issue any press releases or make any other public statements relating to this Agreement, its terms and conditions, or Licensee’s relationship with Samsung without the express prior written approval of Samsung.
During the Term and for two (2) years thereafter, Samsung may perform audits in order to verify the compliance by Licensee of the terms and conditions of this Agreement from time to time. At Samsung’s option, any audits conducted by Samsung pursuant to this Section may be conducted by personnel of Samsung or its Affiliates or agents in a reasonable manner. Licensee shall reasonably cooperate with Samsung or its affiliates or agents conducting the audits. Samsung shall provide Licensee reasonable prior written notice of such audit. Samsung shall use its reasonable endeavors to ensure that the conduct of each such audit does not unreasonably disrupt the business of Licensee. Unless otherwise agreed upon in writing by the Parties, Licensee shall provide access to information or documentation reasonably requested by Samsung to verify Licensee’s compliance of this Agreement, within five (5) days of Licensee’s receipt of Samsung’s request for such information or documentation. Licensee shall not assert that documentation or records that it is obligated to provide under the Agreement are privileged or otherwise seek to withhold access to such documents or information. Licensee shall provide such Samsung auditors any assistance that they may reasonably require.
13. Intellectual Property Rights
Licensee acknowledges and agrees that Samsung owns, without limitation, all right, title and interest to patent, copyright, trademark, trade name, trade secret and other Intellectual Property Rights relating to the design, manufacture, operation or service of the SDK and Custom Binary. Licensee shall not obtain any right, title or interest in or to any intellectual property rights of Samsung other than as expressly granted in this Agreement and only for the specific purposes set forth herein. Except for the limited license granted to Licensee in this Agreement, all rights, title, and interest in and to the SDK, the Custom Binary, Documentation and any other information or data that are made available to Licensee under this Agreement remain, at all times, the sole and exclusive property of Samsung. Licensee agrees to cooperate with Samsung to maintain Samsung's ownership of the SDK, Custom Binary, and Documentation and Licensee agrees to promptly provide notice of any claims or threatened claims relating to the SDK, Custom Binary and/or Documentation. Apart from the license rights expressly set out in this Agreement, Samsung does not grant to Licensee and Licensee does not receive, whether by implication, estoppel or otherwise, any ownership right, title or interest nor any security interest or other interest in any Intellectual Property Rights relating to the SDK, the Custom Binary, Documentation, nor in any copy of any part of the foregoing, nor any other licenses, immunity or rights, express or implied.
Nothing in this Agreement grants Licensee any right to use any of Samsung’s trademarks, trade names, copyrights, service marks, logos, domain names, patents, trade secrets, other brand features distinctive to Samsung, which remain, at all times, the sole and exclusive property of Samsung.
14. DISCLAIMER OF WARRANTY
THE SDK, CUSTOM BINARY, AND DOCUMENTATION ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT ANY WARRANTY OF ANY KIND FROM SAMSUNG. 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 MERCHANTIBILITY, FITNESS FOR A PARTICULAR PUPOSE AND NON-INFRINGEMENT. FURTHER, SAMSUNG DOES NOT REPRESENT OR WARRANT THAT THE SDK, CUSTOM BINARY OR DOCUMENTATION IS FREE OF INACCURACIES, ERRORS, BUGS OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. LICENSEE’S USE OF THE SDK, CUSTOM BINARY AND/OR DOCUMENTATION IS AT ITS OWN DISCRETION AND RISK, AND LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF THE SAME INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO LICENSEE’S COMPUTER SYSTEM OR LOSS OF DATA. FOR THE PURPOSE OF CLARITY, THE SAMPLE CODE IS LICENSED “AS-IS” AND LICENSEE BEARS THE RISK OF USING IT. SAMSUNG GIVES NO EXPRESS AND/OR IMPLIED WARRANTIES, GUARANTEE OR CONDITIONS.
15. LIMITATION OF LIABILITY
SUBJECT TO TERMS AND CONDITIONS OF THIS AGREEEMNT AND TO THE FULLEST EXTENT ALLOWED AND PERMITTED BY APPLICABLE LAWS AND REGULATIONS, SAMSUNG SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO LICENSEE OR ANY THIRD PARTY THROUGH LICENSEE FOR PERSONAL INJURY OR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, LICENSEE’S USE OF THE SDK, CUSTOM BINARY AND/OR DOCUMENTATION OR LICENSEE’S DEVELOPMENT OF FINISHED PRODUCTS AND/OR APPLICATIONS, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SAMSUNG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. LICENSEE’S UNDERSTSANDING, ACKNOWLEDGEMENT AND ACCEPTANCE OF THIS AGREEMENT ARE THE LEGAL BASIS AND CONSIDERATION FOR THE LICENSES GRANTED UNDER IT.
16.1 To the fullest extent permitted by law, Licensee agrees to indemnify, defend and hold harmless Samsung, its Affiliates, directors, officers, employees, independent contractors and agents (each an "Samsung Indemnified Party") from and against any and all claims, losses, liabilities, damages, expenses and costs (including without limitation reasonable attorneys fees) (collectively "Losses") incurred by such Samsung Indemnified Party as a result of (i) Licensee’s (or an Authorized User’s) breach of this Agreement, (ii) any claims that the Finished Products and/or Applications violate or infringe any third party Intellectual Property Rights, (iii) Licensee’s or its agents negligence, willful misconduct, fraud, and/or misrepresentation, (iv) any claims by the Customers or End Users of the Finished Products and/or Application in connection with the use of the same, or (v) otherwise related to or arising from Licensee’s (or any Authorized User’s) use of the SDK, Custom Binary, and/or Documentation, or Licensee’s (or any Authorized User’s) development or distribution of Finished Products and/or Applications, provided that Licensee shall not enter into a settlement or
like agreement with any third party that affects Samsung's rights or binds Samsung in any way without the prior written consent of Samsung.
17.1 Right to Terminate.
This Agreement and all rights granted by Samsung hereunder may be immediately terminated: (a) by Samsung if Licensee ceases use of the SDK and Custom Binary;
(b) by Samsung: (i) if Licensee has breached any terms of this Agreement; or (ii) if Samsung is required by law to terminate this Agreement or the rights granted by Samsung; or (iii) Licensee is declared insolvent or bankrupt;
(c) by Samsung for any reason or no reason upon thirty (30) days prior written notice to Licensee; or
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 in accordance with its terms, 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.
17.2 Consequences of Termination Upon the termination of this Agreement:
(a) all rights granted in this Agreement will terminate;
(b) Licensee shall promptly stop using the SDK and Custom Binary and return the SDK and Custom Binary to Samsung or destroy all electronic copies of the SDK and the Custom Binary and provide written certification of such destruction to Samsung. The provisions of Sections 1, 9, 10, 11, 12, 13, 15, 16, 17.2 and 18 will survive the expiration or termination of this Agreement.
18. General 18.1 Assignment.
Licensee may not assign the Agreement, in whole or in part, without Samsung’s prior written consent, and any attempt to do so without such consent shall be void. For the purpose of this Section 18.1, any Change of Control shall be deemed as an assignment. Samsung may assign this Agreement without Licensee’s consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
This Agreement will not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal relationship between Licensee and Samsung, and Licensee must not represent the existence of any such relationship, whether expressly, by implication or otherwise. 18.3 Third Party Rights
This Agreement is not for the benefit of any third parties. 18.4 Development by Samsung.
Nothing in this Agreement limits or otherwise affects Samsung's right to acquire, develop, license, market, promote, or distribute any product or technology that performs the same or similar functions as the Finished Products, Applications or any other products or technologies that Licensee develops, markets, promotes or distributes, or that otherwise competes with the Applications or such products or technologies.
Any notices or other communication made pursuant to this Agreement must be in writing and will be deemed to have been fully given or made when: (a) personally delivered; or (b) three (3) days after being mailed via commercially reputable overnight delivery service, to the following address: Samsung:
(Maetan dong) 129, Samsung-ro
Yeongtong-gu, Suwon-si, Gyeonggi-do, 443-742 Korea
Licensee: Registered mailing address and e-mail address
Licensee agrees to receive notices and other communications to be made to Licensee pursuant to this Agreement by email and Licensee agrees that any notices that Samsung sends Licensee by email to the registered e-mail address 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.
18.6 No Waiver.
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 Licensee in the performance or compliance with any of the terms and conditions set forth in this Agreement.
Licensee acknowledges 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, Licensee agrees that Samsung shall have the right to apply to any court of competent jurisdiction for injunctive relief and specific performance, without prejudice to any remedies otherwise available to Samsung at law or in equity.
18.8 U.S. Government Contract Provisions.
No government procurement regulation or contract clauses or provision will be considered a part of any transaction between the Parties under this Agreement unless its inclusion is required by statute, or mutually agreed upon in writing by the Parties in connection with a specific transaction. The technical data and computer software covered by this Agreement is a “Commercial Item,” as that term is defined by the FAR 2.101 (48 C.F.R. 2.101) and is “commercial computer software” and “commercial computer software documentation” as specified under FAR 12.212 (48 C.F.R. 12.212) or DFARS 227.7202 (48 C.F.R. 227.7202), as applicable. This commercial computer software and related documentation is provided to end users for use by and on behalf of the U.S. Government, with only those rights as are granted to all other end users under the terms and conditions in this Agreement. Use for or on behalf of the U.S. Government is permitted only if the party acquiring or using the software and related documentation is properly authorized by an appropriate U.S. Government official. This use by or for the U.S. Government clause is in lieu of, and supersedes, any other FAR, DFARS, or other provision that addresses Government rights in the computer software or documentation covered by this Agreement. All copyright licenses granted to the U.S. Government are coextensive with the technical data and computer software licenses granted in this Agreement. The U.S. Government will only have the right to reproduce, distribute, perform, display and use as needed to implement those rights.
18.9 No Rule of Strict Construction.
Regardless of the Parties’ respective roles in drafting this Agreement, no rule regarding strict construction of ambiguous language in this Agreement may be applied against either Party.
18.10 Governing Law; Venue.
This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea, 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 Seoul, Korea 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.
18.11 Entire Agreement.
This Agreement contains the entire agreement between the parties with respect to the use of the SDK 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.
18.11 Electronic Signature.
The Parties may execute this Agreement in counterparts, each of which is deemed an original, but all of which together constitute one and the same agreement. This Agreement may be delivered by electronic mail communications in pdf format, and pdf copies of executed signature pages shall be
binding as originals. Each Party to this Agreement agrees to use electronic signatures; and be subject to the provisions of the U.S. E-SIGN Act (i.e., the Electronic Signatures in Global and National
Commerce Act (ESIGN, Pub.L. 106-229, 14 Stat. 464, enacted June 30, 2000, 15 U.S.C. ch.96).
THIS AGREEMENT IS TIED TO THE ELECTRONIC REGISTRATION BY LICENSEE FROM A PERSON WITH LEGALLY AUTHORITY TO BIND LICENSEE TO THIS AGREEMENT. CLICKING “ACCEPT” OR ANY ACT OF LOADING OR USING ANY SOFTWARE OR DOCUMENTATION PROVIDED UNDER THIS AGREEMENT SHALL BE DEEMED AS ACCEPTANCE OF THE TERMS OF THIS AGREEMENT. IF YOU ARE AN AGENT OR EMPLOYEE OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND LICENSEE TO THIS AGREEMENT BY CLICKING “ACCEPT” OR OTHERWISE LOADING OR USING THE SOFTWARE OR DOCUMENTATION.
KNOX Customization License Agreement Supplementary Addendum
This Supplementary Addendum (“Addendum”) to the KNOX Customization License Agreement is entered into as of the [ day of ] between:
1. [Licensee’s Name], a company registered in [country of incorporation], whose registered office is at [the Supplier’s registered address] (“Relevant Samsung Affiliate” or “RSA”), and 2. [Licensee’s Name], a company registered in [country of incorporation], whose registered
office is at [the Supplier’s registered address] (“Licensee”), together referred to as the “Parties” and each individually as a “Party”.
Whereas, Samsung Electronics Co., Ltd. (“SEC”), and Licensee have entered into the KNOX Customization License Agreement (“Agreement”) dated [insert date]; and
Whereas RSA and Licensee desire to agree on special conditions and requirements applicable to the Custom Binary and Services to be provided by SEC to Licensee and the Fees to be paid by Licensee to RSA, under the Agreement by entering into this Addendum:
Now Therefore, in consideration of the promises and covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the Licensee and the RSA hereby agrees to amend the Agreement as follows:
1. Custom Binary. Parties may agree to a separate SOW, under which, SEC shall develop and deliver a Custom Binary in accordance with agreed milestones and requirements and Licensee shall submit Purchase Orders for an agreed quantity no later than the PO Submission Date defined in SOW, and pay the applicable Fees to RSA based on the SOW and Purchase Orders. For clarity, a separate SOW shall be agreed per each Custom Binary. Upon delivery of Custom Binary, Licensee shall have ten (10) days to evaluate and notify Samsung in writing whether a delivered Custom Binary is acceptable to Samsung. Any acceptance notification or failure to provide such notification within the ten (10) day period shall be deemed (i) acceptance of the Custom Binary as delivered by Samsung, (ii) acknowledgment that the Custom Binary satisfies all milestones and requirements described in SOW, and (iii) waiver of Licensee’s rights and claims in connection therewith. For the avoidance of any doubt, Licensee shall incorporate in any acceptance notification hereunder the following sentence: “The Custom Binary delivered by Samsung shall be hereby accepted by us and we will not require any further modification on Custom Binary.”
2. Services. Subject to Section 7.2 of the Agreement, the following service shall be provided, at SEC’s option, by RSA or SEC to Licensee as the Services under the Agreement:
[Please describe Maintenance Support to be provided]
3. Fees. Licensee shall pay RSA with the Fees stipulated in the Annex 1 attached hereto in accordance with the applicable Purchase Orders and SOWs, within thirty (30) days of the receipt of a relevant invoice.
4. Territory. Territory shall mean [Please define the Territory].
5. No Joint Liability. Except as expressly authorized by SEC under the Agreement, SEC will not be liable for RSA’s performance of the obligations set forth in this Addendum. RSA will not be liable for SEC’s performance, or the performance of any other affiliate of SEC, of the obligations set forth in the Agreement.
6. All other terms and conditions of the Agreement not specifically amended hereby shall remain in full force and effect. Both parties acknowledge they have read this Addendum and agree that the Agreement as amended by this Addendum along with Annexes and SOWs attached hereto or separately agreed hereunder are the complete and exclusive statement of the agreement between the parties, and supersedes all prior proposals and understandings, oral and written, relating to the subject matter In the event of a conflict in terms between the Agreement and the terms of this Addendum, except as otherwise expressly set forth in the Agreement, the terms of the Agreement shall prevail. Terms used herein with their first letter capitalized that are not defined herein shall have the meaning ascribed thereto in the Agreement.
In witness whereof, the parties’ duly authorized representatives hereto have executed this Addendum as of the date of signing by the parties.
For and on behalf of [ ]
Print Name: Title:
For and on behalf of
[name of Samsung Affiliate]
Print Name: Title:
Consent and Waiver Agreement
By signing this document, I confirm my understanding that [name of Finished Product] (the “Product”) provided by [name of SI (Licensee)] (the “Company”) is Company’s product sold under Company’s own trademark and brand and, and neither the Product is Samsung official product nor the Company is an authorized reseller or distributor of Samsung.
I acknowledge that Samsung shall not be responsible for any loss, damage or Injury suffered by me from or in connection with purchasing and using the Product, and hereby release and agree to hold harmless Samsung, its officers, directors, employees and agents from liability, claims, demands, and actions, arising out of or related to any loss, property damage or personal injury that may be sustained by me while using the Product.
I certify that I have read and agree to all of the above. For and on behalf of
Print Name: Title: Date:
Statement of Work
Reference is made to the KNOX Customization License Agreement (the “Agreement”) between Samsung Electronics Co., Ltd. (“SEC”) and [LICENSEE NAME] ("Licensee") dated [[THE EFFECTIVE DATE OF THE KNOX CUSTOMIZATION LICENSE AGREEMENT] and Supplementary Addendum between [name of Relevant Samsung Affiliate] (“RSA”) and Licensee, dated as of [THE EFFECTIVE DATE OF THE SUPPLEMENTARY ADDENDUM] (the “Supplementary Addendum”). This Statement of Work (“SOW”), effective as of [DATE OF THIS SOW] is governed by the terms and conditions of the Agreement and Supplementary Addendum. All terms used herein and not otherwise defined herein are used as defined in the Agreement and Supplementary Addendum. For clarity, a separate SOW shall be agreed per each Custom Binary.
PURPOSE OF THE CUSTOM BINARY: TARGET DEVICE MODEL NAME: DESCRIPTION OF TASKS: PRE-LOADED APPLICATION: QUANTITY OF ORDER: FEES:
Delivery Date for Custom Binary: PO Submission Date:
IN WITNESS WHEREOF, the parties hereto acting through their duly authorized representatives have executed this SOW.
LICENSEE NAME (LICENSEE) Samsung Affiliate (RSA)