End User License Agreement for:
Samsung Knox Manage for Enterprise
This End User License Agreement For Samsung Knox Manage For Enterprise ("EULA" or this “Agreement”) is a binding contract between you and Samsung Electronics Co., Ltd. (“Samsung”) which governs your use of Samsung Knox Manage For Enterprise and services provided therewith (collectively, the “Software”).
THIS AGREEMENT (THIS “AGREEMENT”) CONSTITUTES A LEGAL AGREEMENT BETWEEN YOU (EITHER AN INDIVIDUAL OR A LEGAL ENTITY THAT WILL USE THE PRODUCT AND THAT YOU REPRESENT AS AN EMPLOYEE OR AUTHORIZED AGENT) AND SAMSUNG ELECTRONICS CO., LTD. (“SAMSUNG”) WITH RESPECT TO THE SOFTWARE AND/OR SERVICE IDENTIFIED BELOW. BY INSTALLING, COPYING, DOWNLOADING OR OTHERWISE ACCESSING THE SOFTWARE OR SERVICE, OR OTHERWISE CLICKING THE “ACCEPT” BUTTON, IF APPLICABLE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, SAMSUNG IS UNWILLING TO GRANT YOU ANY RIGHTS TO USE THE SOFTWARE OR SERVICE. IN SUCH EVENT, YOU MAY NOT USE THE SOFTWARE OR SERVICE, AND YOU SHOULD PROMPTLY DESTROY ALL COPIES OF THE SOFTWARE AND ACCOMPANYING DOCUMENTATION (THE "DOCUMENTATION"), OR NOTIFY SAMSUNG TO OBTAIN INSTRUCTIONS ON RETURN OF THE UNUSED SOFTWARE. THIS REPRESENTS THE ENTIRE AGREEMENT BETWEEN YOU AND SAMSUNG.
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY. YOUR USE OF THE SOFTWARE AND/OR SERVICE INDICATES THAT YOU HAVE READ, ACCEPTED AND UNCONDITIONALLY AGREED TO THESE TERMS AND CONDITIONS. YOU MAY NOT USE THE SERVICE IF YOU ARE A (A) PERSON WHO IS NOT OF LEGAL AGE TO FORM A BINDING CONTRACT WITH SAMSUNG OR (B) PERSON WHO IS BARRED FROM RECEIVING THE SERVICE UNDER THE LAWS OF ANY COUNTRY INCLUDING THE COUNTRY IN WHICH YOU ARE A RESIDENT OR FROM WHICH YOU ARE USING THE SERVICE. YOUR USE OF THE SERVICE INCLUDES THE ABILITY TO ENTER INTO AGREEMENTS AND/OR TO MAKE TRANSACTIONS ELECTRONICALLY. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC ASSENT CONSTITUTES YOUR AGREEMENT AND INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS AND HONOR ALL TRANSACTIONS YOU ENTER INTO.
THE SOFTWARE IS PROTECTED BY COPYRIGHT LAWS AND INTERNATIONAL COPYRIGHT TREATIES, AS WELL AS OTHER INTELLECTUAL PROPERTY LAWS AND TREATIES. THE SOFTWARE IS LICENSED, NOT SOLD.
This Agreement includes the following attachments which are incorporated herein by reference:
A. Local Terms & Conditions (as applicable)
SOFTWARE. “Software” means Knox Manage, in the form licensed to you by SAMSUNG together with any updates and modifications to the foregoing, if any, provided to you by SAMSUNG. The Software is licensed solely in machine-readable object code format.
DOCUMENTATION. As used in this Agreement, “Documentation” means the end user documentation made generally available by SAMSUNG for use with the Software, whether published on-line or provided in hard copy. Documentation shall include any updated Documentation that SAMSUNG provides with updates.
USER CONTENTS. “User Contents” mean any information, materials, documents, media files or other content you may upload, transmit, create, post, display or otherwise provide on, through, or to the Service ("User Contents"),
GRANT OF LICENSE. SAMSUNG hereby grants to you a personal, nonexclusive, nontransferable license, without right of sublicense, to install, use and execute the Software. You may install, use and execute the Software on that number of mobile devices for which you have paid SAMSUNG or an authorized SAMSUNG Reseller a license fee.
SERVICE. In the event that the Software is being made available to you through the operation of an online service operated by or on behalf of Samsung (the “Service”), then, notwithstanding any other provision in this Agreement, all references to “license,” “licensed,” etc. are intended to be interpreted as a grant of a right to use the Software through the Service.
RESTRICTIONS. The rights granted herein are subject to the following restrictions: (i) you may not copy, modify, port, adapt, translate, localize, reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code of the Software; (ii) you may not create derivative works based on the Software; (iii) you may not remove any patent, trademark, copyright, trade secret or other proprietary notices or labels on the Software or Documentation; (iv) you may not transfer, lease, assign, sublicense, pledge, rent, share or distribute the Software or Service or make them available for timesharing, service bureau or on-line use; (v) you may not disclose the results of any performance, functional or other evaluation or benchmarking of the Software or Service to any third party without the prior written permission of SAMSUNG.
YOUR RESPONSIBILITIES. You are responsible for all activity occurring under your user accounts, and for abiding by all applicable local, national and international laws. You are required to immediately notify SAMSUNG of any unauthorized use of any password or account or if you become aware of any other breach of any of the terms of this Agreement. You are responsible for the quality, accuracy and integrity of any data and other information that you submit to SAMSUNG in the course of using the Service.
PROPRIETARY RIGHTS. The Software and Documentation are confidential and proprietary information of SAMSUNG and/or its suppliers. Title, ownership rights, and intellectual property rights in and to the foregoing shall remain with SAMSUNG and/or its suppliers. The Software and Documentation are protected by the copyright laws of the United States and international copyright treaties. Title, ownership rights, and intellectual property rights in and to the content accessed through the Software and/or Service are the property of the applicable content owner and may be protected by applicable copyright or other law. This Agreement gives you no rights to such content. This Agreement does not convey to you an interest in or to the Software or the Service, but only grants you a limited right of use, which may be revocable in accordance with the terms of this Agreement.
UPDATES. All updates to the Software and/or Service will be mandatory without any requirement of notice. You are responsible for any damages incurred to you, which could have been avoided if you updated your Software and Service in timely manner.
USER CONTENTS. Title to, and all intellectual property rights in, the User Contents remain your property. You are solely responsible to ensure that you have the necessary rights for any User Contents that you submit to our Services. You acknowledge and agree that your access to the User Contents is contingent on full payment of the License Fee. You must maintain copies of all User Contents inputted into the Service. SAMSUNG adheres to its best practice policies and procedures to prevent data loss, including a daily system data back-up regime, but does not make any guarantees that there will be no loss of User Contents. SAMSUNG expressly excludes liability for any loss of User Contents no matter how caused.
SERVICE AVAILABILITY & SUPPORT. You understand that SAMSUNG uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service. In the event of a service outage SAMSUNG will not and cannot be held liable for data loss, but will act promptly to restore customer system access. You understand that the technical processing and transmission of the Service, including your Content, may be transferred unencrypted and involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
LIMITED WARRANTIES. SAMSUNG warrants to Customer that, for a period of thirty (30) days from the Delivery Date, it will provide the Service in a professional manner and in accordance with generally prevailing standards. SAMSUNG does not warrant that the Service will perform without interruption. SAMSUNG does not warrant that (i) the Software or Service will meet Customer’s requirements, (ii) the Software or Service will operate in combination with other hardware, software, systems or data not provided by SAMSUNG (except as expressly specified in the Documentation), (iii) the operation of the Software or Service will be uninterrupted or error-free, or (iv) all Software errors will be corrected. THE WARRANTIES STATED IN THIS WARRANTIES AND REMEDIES SECTION ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND QUALITY OF SERVICE. NO WARRANTIES SHALL ARISE UNDER THIS AGREEMENT FROM COURSE OF DEALING OR USAGE OF TRADE. SAMSUNG DOES NOT WARRANT THAT THE SOFTWARE, DOCUMENTATION OR SERVICE IS FREE OF THIRD PARTY CLAIMS OF INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE OR SERVICE TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE OPERATION, USE AND RESULTS OF THE SOFTWARE OR SERVICE.
DISCLAIMER OF WARRANTIES. EXCEPT AS PROVIDED IN THIS AGREEMENT, THE SOFTWARE AND SERVICE ARE PROVIDED TO YOU AS IS AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY SAMSUNG OR ITS SUPPLIERS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE OR SERVICE, INCLUDING WARRANTIES OR CONDITIONS OF TITLE, QUALITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, NOR ARE THERE ANY WARRANTIES CREATED BY COURSE OF DEALING, COURSE OF PERFORMANCE, OR TRADE USAGE. SAMSUNG AND ITS SUPPLIERS DO NOT WARRANT THAT THE SOFTWARE OR SERVICE WILL MEET YOUR NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SOFTWARE OR SERVICE WILL BE UNINTERRUPTED. SAMSUNG AND ITS SUPPLIERS DO NOT WARRANT THE ACCURACY OF THE REPORTS GENERATED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS AGREEMENT AND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE PRODUCTS.
LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOST PROFITS, DATA OR USE, INCURRED BY THE OTHER PARTY OR ANY THIRD PARTY UNDER THIS AGREEMENT, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SAMSUNG AND ITS SUPPLIERS' CUMULATIVE LIABILITY TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID BY YOU TO SAMSUNG OR AN AUTHORIZED SAMSUNG RESELLER FOR USE OF THE SOFTWARE OR SERVICE DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE WHEN A CLAIM FOR DAMAGES IS FIRST MADE, AND IF SUCH DAMAGES RELATE TO PARTICULAR SOFTWARE OR SERVICE, SUCH LIABILITY SHALL BE LIMITED TO FEES PAID FOR THE RELEVANT SOFTWARE OR SERVICE GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE WHEN A CLAIM FOR DAMAGES IS FIRST MADE, IF ANY, OR $50, WHICHEVER IS GREATER. IN THE CASE OF SOFTWARE THAT IS DELIVERED FREE OF CHARGE, SAMSUNG AND ITS SUPPLIERS SHALL HAVE NO LIABILITY WHATSOEVER TO YOU OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT.
OPEN SOURCE AND THIRD PARTY SOFTWARE. The Software may contain or be distributed with third party software covered by an open source software license ("Open Source Software") covered by a different license. If Open Source Software is included, the terms and conditions of this license do not apply to the Open Source Software. Information concerning the inclusion of the Open Source Software and Third Party Software may be provided via http://eula.secb2b.com/EULA/EMM/OpenSourceLicense/EMM_OpenSourceLicense_en_US.html
CUSTOMER SECURITY NOTIFICATION & REPORTING. In the event that a customer discovers a vulnerability that affects the confidentiality, integrity or the availability of the service, software or data, they are to immediately contact SAMSUNG and provide the pertinent details required to recreate the vulnerability.
TERMINATION. Your right to use the Software or Service continues until terminated. As long as you comply with this Agreement, SAMSUNG grants you a personal, non-exclusive, non-transferable license to use and execute the Software and enter and use the Service. You may also terminate this Agreement at any time by closing your account. On termination, you must destroy all copies of the Software and cease all use of the Service. Without limiting the generality of the foregoing, SAMSUNG is entitled to disable your account at any time and without observing any notice period if you are in breach of any provision of this Agreement.
ASSIGNMENT. Neither this Agreement nor any rights granted hereunder may be sold, leased, assigned, or otherwise transferred, in whole or in part, by you, whether voluntary or by operation of law. Any such attempted assignment shall be void and of no effect without the prior written consent of SAMSUNG. The foregoing shall not prohibit or restrict SAMSUNG from assigning this Agreement in connection with a merger, assignment, sale of assets or similar change of control transaction, or from assigning its rights or delegating its duties under this Agreement to an affiliate.
ENTIRE AGREEMENT. This Agreement represents the complete agreement concerning this license and supersedes (i) all prior agreements and representations with respect to its subject matter; (ii) prevails over any conflicting or additional terms of any order, acknowledgment, or similar communication between the parties; and (iii) no provision, term or condition of any purchase order or other business form employed by you will supersede the terms and conditions of this Agreement. It may be amended only by a writing executed by both parties.
SEVERABILITY. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force.
GOVERNING LAW. Except as otherwise set forth in Attachment A (if applicable), This Agreement, including all revisions and amendments thereto, is governed by and construed in accordance with the laws of the Republic of Korea, without regard to its conflict or choice of law principles. The United States Uniform Computer Information Transactions Act the United Nations Convention on the International Sale of Goods shall not apply. Except as otherwise set forth in Attachment A (if applicable), you unconditionally consent and agree that: (i) any claim, dispute or controversy (whether in contract, tort, or otherwise) you may have against SAMSUNG or its officers, directors, agents and employees arising out of, relating to, or connected in any way with the Software or this Agreement (including its existence, validity or termination), will 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’ (defined below) 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. For purposes of this Agreement, Affiliate means, 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).
EQUITABLE RELIEF. The parties agree that a breach of this Agreement would cause irreparable injury to SAMSUNG for which there may be no adequate remedy at law. Accordingly, SAMSUNG shall have the right to apply to any court of competent jurisdiction for injunctive relief and specific performance, without prejudice to any remedies available to it at law or in equity.
LEGAL AND EXPORT COMPLIANCE. You shall comply fully with all international and national laws and regulations that apply to the Software and Documentation and to your use thereof, including, but not limited to, the U.S. Export Administration Regulations, end-user, end-use and destination restrictions issued by U.S. and other governments. Without limiting the generality of the foregoing, you expressly agree that you shall not, and shall cause your representatives to agree not to, export, directly or indirectly, re-export, divert, or transfer the Software and Documentation or any direct product thereof to any destination, company or person restricted or prohibited by U.S. laws or regulations or laws or regulations of any other applicable jurisdiction. You represent and warrant that (i) you 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
FORCE MAJEURE. SAMSUNG and its suppliers shall not be liable in any respect for failures to perform hereunder due wholly or substantially to the elements, acts of God, labor disputes, acts of terrorism, acts of civil or military authority, fires, floods, epidemics, quarantine restrictions, armed hostilities, riots and other unavoidable events beyond the control of SAMSUNG or its suppliers, and the time for performance of obligations hereunder by SAMSUNG or its suppliers subject to such event shall be extended for the duration of such event.
LOCAL TERMS AND CONDITIONS – United States of America
The following terms apply to Customer with its principal offices within United States of America or is a resident of the United States of America or to the extent that the laws of the United States of America apply to Customer’s use of the Software.
This Agreement and Customer’s relationship with Samsung shall be governed and construed in accordance with the laws of the state of Texas, without regard to its conflict of law provisions. Subject to Samsung’s right to seek injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction, Customer unconditionally consents and agrees that: (1) any claim, dispute, or controversy (whether in contract, tort, or otherwise) Customer may have against Samsung or the officers, directors and employees of Samsung and its subsidiaries or Affiliates (all such individuals and entities collectively referred to herein as the “Samsung Entities”) arising out of, relating to, or connected in any way with the Software or this EULA (including its existence, validity or termination) or the determination of the scope or applicability of this agreement to arbitrate, will be resolved exclusively by final and binding arbitration administered by JAMS or another mutually-acceptable alternative dispute resolution provider ("Arbitration Tribunal") and conducted in the United States before a sole arbitrator in accordance with the rules of the Arbitration Tribunal; (2) this arbitration agreement is made pursuant to a transaction involving interstate commerce in the United States, and shall be governed by the Federal Arbitration Act (“FAA”), 9 U.S.C. §§ 1-16; (3) the arbitrator’s decision shall be controlled by this Agreement and any of the other agreements referenced herein that the applicable Customer may have entered into in connection with the Software; (4) the arbitrator shall honor claims of privilege recognized at law; (5) there shall be no authority for any claims to be arbitrated on a class or representative basis, arbitration can decide only Customer’s and/or the applicable Samsung Entity’s individual claims; the arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated; (6) the arbitrator shall not have the power to award punitive, exemplary, special or consequential damages against Customer or any Samsung Entity; (7) in the event that the administrative fees and deposits that must be paid to initiate arbitration against any Samsung Entity exceed $125 USD, and Customer is unable (or not required under the rules of the Arbitration Tribunal) to pay any fees and deposits that exceed this amount, Samsung agrees to pay them and/or forward them on Customer’s behalf, subject to ultimate allocation by the arbitrator. In addition, if Customer is able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, Samsung will pay as much of Customer’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive; and (8) with the exception of subparts (5) and (6) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the rules of the Arbitration Tribunal, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (5) or subpart (6) is found to be invalid, unenforceable or illegal, then if Samsung so elects, the entirety of this arbitration provision shall be null and void, and neither Customer nor Samsung shall be entitled to arbitrate their dispute.
LOCAL TERMS AND CONDITIONS - Europe
The following terms apply to any Customer with its principal offices or residence within the European Economic Area (EEA) or European Union, or Switzerland, Iceland, Montenegro, Serbia, Kosovo, Albania, Bosnia & Herzegovina, Macedonia, San Marino, Monaco, Vatican City, the Channel Islands, the Isle of Man, overseas departments of France, or the Faeroe Islands:
1. Despite paragraph Governing Law of this Agreement, this Agreement and Customer’s relationship with Samsung shall be subject to the laws and jurisdiction of the state listed above in which you have your principal offices or, if you are not a business, the state listed above where you are resident.
2. Despite any term of this Agreement in paragraph Restrictions or elsewhere to the contrary, and to the extent required by Directive 91/250/EEC (as amended) on the legal protection of computer programs as implemented in your jurisdiction, for the time while you have the right to use the Software you have the right to:
2.1 make a back-up copy to the extent that it is necessary to do so to use the Software;
2.2 observe, study or test the functioning of the Software in order to determine the ideas and principles which underlie any element of the program if you do so while performing any of the acts of loading, displaying, running, transmitting or storing the program which you are entitled to do; and
2.3 disassemble, decompile, reverse engineer or create derivative works based on the whole, or any part, of the Software but in either case only to the extent that such actions cannot be prohibited because they are essential for the purpose of achieving inter-operability of the Software with another software program, and provided that the information obtained by you during such activities: (i) is used only for the purpose of achieving inter-operability of the Software with another software program (ii) is not unnecessarily disclosed or communicated to any third party without the Samsung’s prior written consent; and (iii) is not used to develop, produce or market any software which is substantially similar to the Software or for any other act which infringes copyright.
3. Nothing in this EULA (in particular paragraphs Warranties and Limitation of Liability) shall exclude or limit, or be taken as seeking to exclude or limit, any liability which the applicable law does not permit to be excluded, or, as the case may be, limited but only to the extent that such exclusion or limitation is not permitted or would make the EULA unenforceable. Depending on the applicable law, this may include willful misconduct, gross negligence, death or injury caused by negligence, fraud, fraudulent misrepresentation or warranties as to ownership which cannot be excluded by law.
4. Despite paragraph Governing Law, the place of Arbitration shall be London, England.