End User License Agreement for:
End User License Agreement For Knox Workspace – Knox Premium
This End User License Agreement For Knox Workspace – Knox Premium ("EULA" or this “Agreement”) is a binding contract between you and Samsung Electronics Co., Ltd. (“Samsung”) which governs your use of a version of Knox Workspace included in Knox Premium, in the form licensed to you by Samsung, and services provided therewith (collectively, the “Software”). The Software features may vary depending on the country, operating system, device model, your network operator and the version of the Software (For further information, please visit: http://www.samsungknox.com.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SOFTWARE BECAUSE IT CONSTITUTES A BINDING LEGAL AGREEMENT BETWEEN YOU AND SAMSUNG. IF YOU ARE AN EMPLOYEE OF OR CONSULTANT OR CONTRACTOR TO AN ENTITY SUBSCRIBING TO THE SOFTWARE (“CUSTOMER”), YOUR AGREEMENT TO THIS EULA WILL BE DEEMED TO BE THE AGREEMENT BETWEEN THAT CUSTOMER AND SAMSUNG AND YOU AND THE CUSTOMER REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY OR HAVE BEEN PROVIDED THE AUTHORITY TO BIND THE CUSTOMER TO THE TERMS AND CONDITIONS OF THIS EULA.
BY ACCESSING OR USING THE SOFTWARE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTOOD THIS AGREEMENT, AND CUSTOMER AGREES TO COMPLY WITH AND BE BOUND BY ITS TERMS. IF CUSTOMER IS NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SOFTWARE.
NOTWITHSTANDING ANYTHING ELSE STATED HEREIN, IF CUSTOMER AND SAMSUNG HAVE EXECUTED A WRITTEN AGREEMENT FOR THE ACCESS TO OR USE OF THE SOFTWARE (“SIGNED AGREEMENT”), THEN THE TERMS OF THE SIGNED AGREEMENT SHALL GOVERN AND CONTROL AND THIS AGREEMENT SHALL HAVE NO EFFECT.
CUSTOMER ACKNOWLEDGES THAT CUSTOMER REPRESENTATIVE (AS DEFINED BELOW) MAY NEED TO ACCEPT ADDITIONAL TERMS AND CONDITIONS THAT MAY POP UP ON THE SCREEN OF HIS OR HER MOBILE DEVICE WHICH RELATE TO DATA COLLECTION, PRIVACY PRACTICES, FUNCTIONING OF THE SOFTWARE AND SAMSUNG’S LIABILITY DIRECTLY TO CUSTOMER REPRESENTATIVES (“POP UP AGREEMENT”) TO ACCESS TO OR USE THE SOFTWARE. IN THE EVENT OF A CONFLICT BETWEEN THE TERMS OF THE POP UP AGREEMENT AND THIS EULA, THIS EULA SHALL GOVERN AND CONTROL AND THE CONFLICTING TERMS OF THE POP UP AGREEMENT SHALL HAVE NO EFFECT TO CUSTOMER OR CUSTOMER REPRESENTATIVE.
This EULA includes the following attachments which are incorporated herein by reference: A. Local Terms & Conditions (as applicable)
1.1 Grant of License
Subject to the terms and conditions of this EULA, during the applicable license term, Samsung hereby grants to Customer, and any employee or contractor of Customer whom Customer authorizes to access and use the Software on behalf of and for the benefit of Customer (“Customer Representative”) a limited, non-exclusive, non- transferable and non-sublicensable license for Customer and Customer Representatives to use the object code form of the Software for Customer’s purposes only, and solely in accordance with the applicable documentation provided by Samsung for use of the Software (“Documentation”). Customer may use the Documentation for internal purposes only. Customer may not use the Software for any purpose or in any way, not expressly permitted by this EULA. The Software is licensed, not sold. All references to the Software includes all related graphics, user interfaces, scripts and services provided by Samsung for use of the Software, and any updates, upgrades, enhancements, modifications, revisions or additions to the Software made available to Customer by Samsung. However, Samsung is under no obligation to provide any updates, upgrades, enhancements, modifications, revisions or additions to the Software except if Customer has purchased maintenance services from Samsung or a Samsung Knox authorized reseller.
As a condition of the license granted in Section 1.1, Customer shall not: (i) use the Software or any portion thereof, except as expressly authorized by this EULA; (ii) use the Software or any portion thereof on equipment, products, or systems not identified in Documentation; (iii) modify the Software or any portion thereof or create derivative works based upon any Software or any portion thereof; (iv) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software or any portion thereof to human-readable form; (v) use the Software or any portion thereof in any way that is in violation of any applicable laws; (vi) distribute, sell, license or otherwise provide the Software or any portion thereof to any third parties; (vii) use the Software or any portion thereof to perform services for third parties except as otherwise expressly provided herein; (vii) release, publish, and/or otherwise make available to any third party the results of any performance, functional or security evaluation of the Software or any portion thereof without the prior written approval of Samsung; (viii) alter or remove any proprietary notices or legends contained on or in the Software or any portion thereof; or (ix) use the Software for emergency, life saving, life support, nuclear energy equipment, air traffic control, the operation of critical communication system, public transportation control or other ultra-hazardous uses where failure of the Software to perform would be reasonably expected to cause deaths, injuries or severe physical property or environmental losses. Any attempt to do any of the foregoing shall be deemed as a material breach under this Agreement.
2. INTELLECTUAL PROPERTY, LICENSES
The Software is proprietary to Samsung or its licensors, and protected under applicable copyright, patent, trademark and trade secret laws. Customer further acknowledges and agrees that, as between Customer and Samsung, Samsung owns and shall continue to own all right, title and interest in and to the Software, including associated intellectual property rights under the applicable laws. This EULA does not grant Customer any ownership interest in or to the Software, but only a limited license to use that is revocable in accordance with the terms of this EULA.
2.2 Open Source Software
The Software may contain or be provided with open source libraries, components, utilities and other open source software (collectively, “Open Source”), which Open Source may have applicable license terms as identified on a website designated by Samsung or otherwise provided with the applicable Documentation. Notwithstanding anything to the contrary herein, use of the Open Source shall be subject to the applicable Open Source license terms and conditions to the extent required by the applicable licensor (which terms shall not restrict the license rights granted to Customer hereunder but may contain additional rights).
3. SPECIAL PROVISION: USE OF CONTAINER
The Software provides additional security by creating a separate container (“Container”), which is designed to isolate Customer’s email, contacts, and calendars managed by Customer’s exchange server from certain attacks including data leakage, malware & malicious attacks such as vicious virus infection (“Malicious Attacks”). Notwithstanding the foregoing, Samsung does not represent, warrant or guarantee that the Container (i) is free of error or malfunction, or (ii) will be secure or immune from unauthorized access or Malicious Attacks. Samsung will not be responsible for any failure of performance, deterioration, or malfunction of the Container to effectively protect data or applications within the Container from any Malicious Attacks.
3.2 Third Party Applications
3.3 Trusted Boot
Software provides a security feature, called Trusted Boot, which is designed to detect unauthorized rooting and custom ROM (i.e., to detect non-Samsung-official firmware), which may have been installed in Customer’s or Customer Representative’s device during booting time. Upon detection of such unauthorized rooting or custom ROM, the Container will be automatically locked and Customer or Customer Representative may not use the data or application stored or installed in the Container. Thus, Customer and Customer Representative are strongly advised to back up important data or information as set forth in Section 3.4.
Customer and Customer Representative may not pull out the data or information stored in the Container. Customer and Customer Representative are strongly advised to back-up any data and information before storing or using them in the Container. Samsung shall not be liable for any loss of data or information arising from Customer’s or Customer Representative’s failure to back-up.
4. SUPPORT AND MAINTENANCE SERVICES
If Customer has paid an Authorized Reseller the relevant fees, support and/or maintenance services may be available. Please contact the Authorized Reseller for more information.
5. INFORMATION; PRIVACY
Customer agrees that the following information will be provided to Samsung by Customer and/or Customer Representative in encrypted form for the sole purpose of validation and activation of the Software, improving the Software or for statistical or demographic analysis:
Samsung Knox License Key, unique mobile device identifier, MODEL description of mobile device, Android OS Version, Build Number, Samsung Knox-SDK version, MCC (Mobile Country code) / MNC (Mobile network code), Country ISO code, CSC code (customer software configuration), Samsung Knox Container ID, Activation time for container, Customer Representative’s e-mail address in hashed form, Customer Representative’s e-mail domain, Samsung Knox Login frequency, Samsung Knox usage time.
6. TERM; TERMINATION
The license granted herein with respect to the Software shall remain effective until terminated or until the applicable license term expires, whichever is earlier. This EULA is entered into as of the earlier of the date that Customer accepts the terms herein or first accesses or uses any Software (the “Effective Date”).
6.2 Termination by Samsung
If Customer fails to comply with any of the provisions of this EULA, without limiting Samsung's other rights and remedies, all of which are expressly reserved, at its sole discretion, Samsung may provide Customer written notice of breach and if Customer fails to cure within thirty (30) days of such notice, Samsung may immediately discontinue Customer’s and Customer Representative’s access to the Software and terminate this EULA. Upon termination of this EULA, Customer and Customer Representative shall cease use of all Software in its possession or control. Sections 9 and 10 and all liabilities that accrue prior to termination or expiration shall survive any termination or expiration of this EULA.
7. LIMITED WARRANTIES; DISCLAIMER
7.1 Limited Warranties
For a period of ninety (90) days from the date of initial delivery of the Software to Customer, Samsung warrants that such Software materially conforms to the specifications described in the relevant Documentation. Customer’s sole and exclusive remedy and the entire liability of Samsung and its licensors under this limited warranty will be, at Samsung’s option, repair or replacement of such Software, or if repair or replacement is not possible, to refund the license and any associated support and maintenance fees paid for such non-conforming Software upon the return and removal (as applicable) of all such Software from servers and devices. Samsung represents and warrants to Customer that Maintenance Services, if provided by Samsung, shall be professional, workmanlike and performed in a manner conforming to generally accepted industry standards and practices for similar services. Samsung’s entire liability and Customer’s sole and exclusive remedy for any breach of the preceding warranty for Maintenance Services will be for Samsung to re-perform the nonconforming services, provided that Samsung must have received written notice of the non-conformity from Customer no later than ninety (90) days after the original delivery of the services by Samsung. The express warranties specified above do not apply if the Software or any portion of the foregoing: (i) has been altered, except by Samsung; (ii) has not been used, installed, operated, repaired, or maintained in accordance with this EULA and/or Documentation; (iii) has been subjected to abnormal physical or electrical stress, misuse, negligence, or accident; or (iv) is used on equipment, products, or systems not meeting specifications identified by Samsung in the applicable Documentation. Additionally, the warranties set forth herein only apply when notice of a warranty claim is provided to Samsung within the applicable warranty period specified herein and do not apply to any bug, defect or error caused by or attributable to software or hardware not supplied by Samsung.
EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN THIS SECTION 7, THE SOFTWARE IS PROVIDED “AS IS”, "WHERE IS" AND “AS AVAILABLE” AND WITHOUT WARRANTIES OF ANY KIND. SAMSUNG AND ITS LICENSORS MAKE NO REPRESENTATIONS OR WARRANTIES OR GUARANTEES OF ANY KIND OR NATURE, WHETHER EXPRESS OR IMPLIED, REGARDING THE SOFTWARE, AND SPECIFICALLY DISCLAIMS ALL SUCH WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. WITHOUT LIMITING THE PREVIOUS DISCLAIMER, SAMSUNG AND ITS LICENSORS DO NOT REPRESENT, WARRANT OR GUARANTEE THAT THE SOFTWARE WILL (i) OPERATE IN AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE MANNER, (ii) WILL ALWAYS BE AVAILABLE OR FREE FROM ALL HARMFUL COMPONENTS OR ERRORS OR (iii) WILL BE SECURE OR IMMUNE (INCLUDING THE CONTENT DELIVERED TO CUSTOMER OR THE INFORMATION CUSTOMER PROVIDED) FROM UNAUTHORIZED ACCESS OR MALICIOUS ATTACKS.
8. LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SAMSUNG OR ITS LICENSORS BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE DAMAGES OR LOST PROFITS, EVEN IF SAMSUNG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF SAMSUNG ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, THE USE OF OR INABILITY TO USE SOFTWARE, ASSOCIATED SERVICES, OR OTHERWISE, EXCEED THE FEES CUSTOMER PAID FOR THE SOFTWARE OR MAINTENANCE SERVICE. IN THE CASE OF SOFTWARE THAT IS PROVIDED FREE OF CHARGE, SAMSUNG AND ITS LICENSORS SHALL HAVE NO LIABILITY WHATSOEVER TO CUSTOMER OR ANY OTHER PARTY FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THE SOFTWARE OR THIS AGREEMENT. THIS LIMITATION WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER BREACH OF CONTRACT, NEGLIGENCE, INFRINGEMENT OR ANY OTHER THEORY REGARDLESS OF WHETHER OR NOT SAMSUNG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS CUSTOMER MAY BRING AGAINST ANY OTHER PARTY TO THE EXTENT THAT SAMSUNG WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM. MULTIPLE CLAIMS SHALL NOT EXPAND THE LIMITATIONS SET FORTH IN THIS SECTION.
The Software (and any performance data, benchmark results, security assessments and all other technical information relating to the Software), the Documentation, the terms and conditions of this EULA and any other information provided by Samsung in connection with the Software shall be deemed the confidential information of Samsung (“Confidential Information”). Notwithstanding the foregoing, Confidential Information shall not include information that Customer can evidence in writing: (a) is already known to Customer without restriction as to disclosure prior to disclosure by Samsung; (b) becomes publicly available without fault of Customer; (c) is rightfully obtained by Customer from a third party without restriction as to disclosure; or (d) is independently developed or created by Customer without use of the Confidential Information. Except as otherwise expressly authorized herein, Customer agrees to: (i) use the Confidential Information only to perform hereunder or exercise rights granted to it hereunder; (ii) treat all Confidential Information in the same manner as it treats its own similar proprietary information, but in no case will the degree of care be less than reasonable care; and (iii) disclose the Confidential Information only to Customer’s employees and agents who have a need to know such information for the purposes of this EULA, provided that any such employee or agent shall be subject to obligations of non-use and confidentiality with respect to the Confidential Information at least as restrictive as the terms of this EULA, and Customer shall remain liable for any non-compliance of such employee or agent with the terms of this EULA. Nothing in this EULA shall prevent Customer from disclosing information to the extent Customer is legally compelled to do so by any governmental investigative or judicial agency pursuant to proceedings over which such agency has jurisdiction; provided, however, that prior to any such disclosure, Customer shall: (i) assert the confidential nature of the information to the agen cy, (ii) immediately notify Samsung in writing of the agency’s order or request to disclose, and (iii) cooperate fully with Samsung in protecting against any such disclosure and obtaining a protective order narrowing the scope of the compelled disclosure and protecting its confidentiality. The confidentiality obligations under this Section shall survive any expiration or termination of this EULA and be effective for a period of three (3) years after the expiration or termination of this EULA.
10. GENERAL TERMS
10.1 Choice of Law
Except as otherwise set forth in Attachment A (if applicable), of this EULA, 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. Notwithstanding any choice of law provision or otherwise, and 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), , Customer unconditionally consents and agrees that: (i) any claim, dispute or controversy (whether in contract, tort, or otherwise) Customer 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 EULA (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 EULA, 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).
10.3 Independent Contractors
The parties are independent contractors, and this EULA shall not establish any relationship of partnership, joint venture, employment, franchise or agency between the parties.
10.4 Equitable Relief
The parties agree that a material breach of this EULA 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.
10.5 Entire EULA; Modifications
This EULA constitutes the entire agreement between the parties with respect to the provision of the Software and Maintenance Services. This EULA supersedes and cancels all previous written and previous or contemporaneous oral communications, proposals, representations, and agreements relating to the subject matter contained herein. This EULA prevails over any pre-printed, conflicting or additional terms of any purchase order, ordering document, acknowledgement or confirmation or other document issued by Customer, even accepted in writing by both parties.
Software and Documentation, including any technical data provided by Samsung hereunder, may be subject to export, re-export or import control laws under the country of origin, destination or use, including regulations under such laws. Customer shall comply fully with all international and national laws and regulations that apply to the Software and Documentation and to Customer and Customer Representative’s 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, Customer expressly agrees that Customer shall not, and shall cause Customer Representative to agree not to, export, directly or indirectly, re-export, divert, or transfer the Software and Documentation or any technical data 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. Customer represents and warrants that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Customer are not listed on any U.S. Government list of prohibited or restricted parties.
If any term or provision of this EULA is held to be void or unenforceable by any judicial or administrative authority, such determination shall not affect the validity of enforceability of the remaining terms and provisions of this EULA. The remaining provisions of this EULA shall remain in effect and shall be construed in accordance with its terms.
The headings contained in this EULA are for reference purposes only and shall not affect the meaning or interpretation of this EULA.
10.9 No Waiver
The failure of Samsung to enforce at any time any of the provisions of this EULA, or the failure by Samsung to require at any time performance by Customer of any of the provisions of this EULA, shall in no way be construed to be a present or future waiver of such provisions, nor in any way affect the right of Samsung to enforce such provision thereafter. The express waiver by Samsung of any provision, condition or requirement of this EULA shall not constitute a waiver of any future obligation to comply with such provision, condition or requirement.
10.10 U.S. Government End User Purchasers
All Software, including all components thereof, and Documentation qualify as “commercial items,” as that term is defined at Federal Acquisition Regulation (“FAR”) (48 C.F.R.) 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in FAR 12.212. Consistent with FAR 12.212 and DoD FAR Supp. 227.7202-1 through 227.7202-4, and notwithstanding any other FAR or other contractual clause to the contrary in any agreement into which this EULA may be incorporated, Customer may provide to Government end user or, if this EULA is direct, Government end user will acquire, the Software and Documentation with only those rights set forth in this EULA. Use of either the Software or Documentation or both constitutes agreement by the Government that all Software and Documentation are “commercial computer software” and “commercial computer software documentation,” and constitutes acceptance of the rights and restrictions herein.
Any notice required or permitted to be given in accordance with this EULA shall be in writing. Notices to Samsung shall be sent by personal delivery, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to:
Samsung Co., Ltd. (Maetan dong) 129, Samsung-ro, Yeongtong-gu, Suwon-si, Gyeonggo-do 443-742 Korea Attention: General Counsel.
For contractual purposes, Customer consents to receive communications from Samsung electronically. Notices sent to Customer shall be sent by personal delivery, electronic mail, registered or certified mail (return receipt requested, postage prepaid) or commercial express courier (with written verification of receipt) to: the electronic address Customer have provided to Samsung or its Authorized Reseller in connection with licensing Software or invoicing. All notices will be deemed given: (i) when delivered personally; (ii) 24 hours after electronic mail is sent, unless Samsung is notified that the email address is invalid; (iii) five (5) days after having been sent by registered or certified mail, (or ten (10) days for international mail); or (iv) one (1) day after deposit with a commercial express courier specifying next day delivery (or two (2) days for international courier packages specifying 2-day delivery). Customer or Samsung may change its address for receipt of notice by notice to the other in accordance with this Section.
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 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 pro vision 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 10.1 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 1.2 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 7 and 8) 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 10.2, the place of Arbitration shall be London, England.
END USER LICENSE AGREEMENT
FOR Samsung SDS IAM & EMM
This End User License Agreement (“EULA”) is a binding contract between the end user (“Customer”) and SAMSUNG SDS Co., Ltd (“SDS or Licensor”) which governs Customer’s use of software provided by SDS.
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SOFTWARE BECAUSE IT CONSTITUES A BINDING LEGAL AGREEMENT BETWEEN CUSTOMER AND SDS. IF CUSTOMER IS NOT WILLING TO BE BOUND BY THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE SOFTWARE. SDS MAY MODIFY THIS EULA FROM TIME TO TIME. IF CUSTOMER CONTINUES TO ACCESS OR USE THE SOFTWARE AFTER SUCH MODIFICATION, CUSTOMER WILL BE DEEMED TO HAVE READ, UNDERSTOOD AND UNCONDITIONALLY AGREED TO SUCH CHANGES. BY ACCESSING OR USING THE SOFTWARE, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ AND UNDERSTOOD THIS AGREEMENT, AND CUSTOMER AGREES TO COMPLY WITH AND BE BOUND BY THE TERMS AND CONDITIONS EXPRESSED HEREUNDER.
1. “Software” means Samsung SDS IAM & EMM in the form licensed to Customer by SDS together with any updates and modifications to the foregoing, if any, provided to Customer by SDS. The Software is licensed solely in machine-readable object code format. The Software is owned and copyrighted by SDS and/or by third party licensors. Customer's Software License confers no title or ownership and is not a sale of any rights in the Software. Third party licensors shall have the rights to protect their own proprietary rights in and to the Software in the event of any infringement.
2. “Documentation” means the SDS standard documentation, in human- or machine-readable format, in any medium, which is made generally available to Customer under this EULA for use with the Software. Documentation shall include any updated Documentation that SDS provides with updates.
“Customer Contents” means any information, materials, documents, media files or other content Customer may upload, transmit, create, post, display or otherwise provide on, through, or to the Software.
3. “Affiliates” 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).
2. Grant of Limited License
SDS hereby grants and Customer accepts a personal, nonexclusive, nontransferable license, without right of sublicense, to install, use and execute the Software, in conformance with the third party licensor’s terms, conditions and restrictions that may accompany the Software. Customer may install, use and execute the Software to the extent for which Customer have paid SDS a license fee. For the avoidance of doubt, Customer shall not use any free trial licenses beyond the trial period and I or exceed the number of device activations provided under any free trial. SDS reserves the right to contact Customer and request payment for usage beyond the trial period. No license is granted in the source code of the Software
Customer shall not (and shall not allow any third party to): (i) modify or create derivative works of any Software without the express written consent of licensors; (ii) reverse engineer or attempt to discover any source code or underlying ideas or algorithms of any Software (except to the extent that applicable law prohibits reverse engineering restrictions), (iii) provide, lease, lend, sublicense, use for timesharing or service bureau purposes or otherwise use or allow the use of the Software for the benefit of any third party (including by way of multiplexing or pooling) other than permitted by licensors in writing, (iv) disclose the results of any benchmark testing, technical results or other performance data relating to the Software without licensors’ prior written consent or (v) use any Software, or allow the transfer, transmission, export, or re-export of any Software or portion thereof in violation of any export control laws or regulations, or in violation of any laws or regulations governing Customer or Customer’s business. If Customer is an entity, Customer agrees to be responsible for the compliance of each of Customer’s employees, contractors and agents with the terms and conditions hereof.
Customer agrees to defend, indemnify, and hold harmless SDS and affiliates and all of their respective employees, agents, directors, officers, shareholders, attorneys, successors, and assigns from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including attorneys’ fees and litigation expenses) relating to or arising from any breach by Customer of this EULA.
5. Intellectual Property
The Software is protected by copyright laws, international copyright, patents, trade secrets and other intellectual property rights. As between Customer and SDS, SDS shall retain all right, title, interest, ownership and intellectual property rights in and to the Software. The License confers no title or ownership in the Software and is not a sale of any rights in the Software. The License does not grant Customer any right to any enhancement or update to the Software. SDS reserves any and all rights not expressly granted to Customer.
Customer agrees that SDS and/or third party licensors may audit Customer’s use of the Software for compliance with these terms at any time, upon reasonable notice. In the event that such audit reveals any use of the Software by Customer other than in full compliance with the terms of this EULA, Customer shall reimburse SDS or third party licensors for all reasonable expenses related to such audit in addition to any other liabilities Customer may incur as a result of such non-compliance.
7.Disclaimer of Warranties
EXCEPT AS PROVIDED IN THIS EULA, THE SOFTWARE IS PROVIDED TO CUSTOMER AS IS AND THERE ARE NO WARRANTIES, CLAIMS OR REPRESENTATIONS MADE BY SDS, EITHER EXPRESS, IMPLIED, OR STATUTORY, WITH RESPECT TO THE SOFTWARE, 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. SDS DOES NOT WARRANT THAT THE SOFTWARE WILL MEET CUSTOMER’S NEEDS OR BE FREE FROM ERRORS, OR THAT THE OPERATION OF THE SOFTWARE (i) WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE MANNER, (ii) WILL ALWAYS BE AVAILABLE OR FREE FROM ALL HARMFUL COMPONENTS OR ERRORS OR (iii) WILL BE SECURE OR IMMUNE (INCLUDING THE CONTENT DELIVERED TO CUSTOMER OR THE INFORMATION CUSTOMER PROVIDED) FROM UNAUTHORIZED ACCESS. SDS DOES NOT WARRANT THE ACCURACY OF THE REPORTS GENERATED. THE FOREGOING EXCLUSIONS AND DISCLAIMERS ARE AN ESSENTIAL PART OF THIS EULAAND FORMED THE BASIS FOR DETERMINING THE PRICE CHARGED FOR THE PRODUCTS.
8. Liability Limitations
IN NO EVENT SHALL SDS AND THIRD PARTY LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE, OR OTHER ECONOMIC LOSS OF ANY SORT, EVEN IF SDS IS INFORMED OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SDS’ OR THIRD PARTY LICENSORS’ TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT REGARDLESS OF WHETHER BASED IN CONTRACT OR TORT, INCLUDING ANY CLAIMS FOR CONTRIBUTION OR INDEMNITY, EXCEED TEN PERCENT (10%) OF TOTAL AMOUNT OR SIX (6) MONTHS’ WORTH OF LICENSE FEE PAID BY CUSTOMER UNDER THIS AGREEMENT, WHICHEVER IS LOWER.
9. Registration and Privacy
10. Open Source 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. This EULA applies exclusively to Customer’s access to, and use of Software excluding the portion containing Open Source Software and does not alter in any way the terms and conditions of the respective Open Source Software.
11. Entire Agreement
This EULA 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 Customer will supersede the terms and conditions of this EULA.
12. Equitable Relief
The parties agree that a breach of this EULA would cause irreparable injury to SDS for which there may be no adequate remedy at law. Accordingly, SDS 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.
13. Legal & Export Compliance
Customer shall comply fully with all international and national laws and regulations that apply to the Software and Documentation and to Customer’s 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, Customer expressly agrees that Customer shall not, and shall cause Customer’s 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. Customer represents and warrant that (i) Customer is not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) Customer is not listed on any U.S. Government list of prohibited or restricted parties.
14. Force Majeure
SDS and third party licensors 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 SDS, and the time for performance of obligations hereunder by SDS subject to such event shall be extended for the duration of such event.
The License is effective until expired or terminated. The License shall expire automatically upon the expiration of applicable Documentation. The License shall terminate immediately without notice from SDS or its licensors if Customer fails to comply with any provision of this EULA or upon a breach of applicable Additional Documentation by Customer (including breach for nonpayment, if applicable). The remaining terms and conditions of this EULA shall survive the termination or expiration of the License.
In the event any provision of this EULA is held to be invalid or unenforceable, the remaining provisions of this EULA will remain in full force.
17. Governing Law and Arbitration
This EULA, 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. Customer unconditionally consents and agrees that: (i) any claim, dispute or controversy (whether in contract, tort, or otherwise) Customer may have against SDS or its officers, directors, agents and employees arising out of, relating to, or connected in any way with the Software or this EULA (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’ 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.