SAMSUNG ENTERPRISE TECHNICAL SUPPORT TERMS OF SERVICE (END CUSTOMER - GERMANY)
The sale and performance of Samsung Enterprise Technical Support is governed by these Samsung Enterprise Technical Support Terms of Service (the "TOS"). The TOS apply to purchases of Services (as defined below) directly from Samsung.
By placing your order (the “Order”) for the Services and clicking/checking any “I received and agree to the Terms of Service” button or box or similar on the Samsung Enterprise Technical Support website in connection with your purchase, you agree to be bound by these TOS. These TOS are agreed between (i) you, either individually if you are agreeing to it in your own capacity, or if you are authorized to agree to these terms on behalf of your company or another entity, between the entity for whose benefit you act (in either case, "you", “your”, "Company" or “Customer”, as specified below), and (ii) Samsung Electronics GmbH (“Samsung”). The Services are solely for your internal use and may not be resold.
Capitalized terms used but not defined in these TOS shall have the meanings as set forth in the applicable Order.
“Services” means each Samsung Enterprise Technical Support service offering as described in a service guide (each, a “Samsung Service Guide”) as stated at https://www.samsungknox.com/ets and/or via other hotlines, which may be updated from time to time. Samsung shall be entitled to modify the Services (and update the Samsung Service Guide accordingly), provided that any material changes to the Services shall only be implemented subject to the following procedure: Any material changes to the Samsung Service Guide shall be notified to you in text form no later than two months before their proposed implementation date. If you have not objected to the proposed changes prior to the proposed implementation date such changes shall be deemed to have been approved by you.
The current version of the Samsung Service Guide is attached hereto as Exhibit A. Each Samsung Service Guide describes: (i) available service options; (ii) specific projects, tasks, functions, responsibilities and services to be furnished by Samsung to Company; (iii) deliverables to be provided (the “Deliverables”); (iv) assumptions, conditions and dependencies impacting the Services or upon which the pricing or delivery of the Services might be based; (v) additional TOS that apply to the particular Services (for example, service levels, performance requirements, milestones, project plans, acceptance testing, and license rights for Deliverables); (vii) the duration of the Services (the “Service Term”) and (viii) the available options where the service can be provided (the “Service Territory”).
The service shall be provided for the following territories (“Service Territory) as specified in the order.
The Service will be provided from the Service Start Date to the Service End Date (as defined below, see clause 10.1).
Charges and expenses for the Services will be set out in the applicable Order (“Fees”).
1.1. SERVICE MANAGER
All communications regarding any Order shall be directed to the applicable Company or Samsung contacts. The Samsung and Company contacts shall have the authority to act on behalf of the respective party in all day-to-day matters pertaining to the applicable Order, but shall not have the authority, through action, inaction or otherwise, to amend or modify these TOS or an Order. Either party may change its designated contact upon prior written notice to the other party.
1.2. SERVICE LOCATION
Samsung may provide the Services (or portions thereof) from any location determined by Samsung or relocate the provision of the Services (or any portion thereof).
1.3. ACCESS AND USE
Company acknowledges that it is responsible (administratively and financially) for obtaining all required approvals, licenses, authorizations, consents, and permits for Samsung to use or access the Company sites or Company contractor sites, with such sites being kept free of health and safety hazards.
1.4. CHANGES TO SCOPE OF SERVICES
Samsung or Company may request changes to the then existing scope of Services or Deliverables, including new or additional services, in accordance with the following change control procedures. All change requests will: (i) be in writing; (ii) have a description of the requested change; (iii) describe the purpose of the change; (iv) determine the priority of the change; (v) reflect the date of requested implementation; (vi) identify the pricing impact of the change, if any; and (vii) give the name of the individual authorized to request such changes. Changes requested will be reviewed by the receiving party as soon as possible, and all changes mutually agreed to by the parties will become effective upon the date set forth in the document executed by both parties describing such changes. Samsung's right to update the Samsung Service Guide pursuant to clause 1 and thereby change the Services shall remain unaffected.
Company acknowledges that the ability of Samsung to provide certain Services and Deliverables in accordance with these TOS and the associated Order (including the agreed pricing and delivery models) are contingent upon certain Company obligations, and Company represents, warrants and covenants that: (i) the Company Materials (as defined below) provided by Company shall be accurate, complete and accessible in the manner and in the format required by Samsung; and (ii) Company will cooperate and provide timely performance of its obligations.
In the event any Company Materials are found to be inaccurate, incomplete or not properly accessible or formatted, or Company fails to perform its obligations, without prejudice to any other rights or claims of Samsung, the parties agree to negotiate in good faith equitable changes to the impacted Order, which may include, without limitation, changes to the Fees charged to Company. Company is responsible for completing and maintaining a backup of all existing data, content, programs and Samsung will be liable for loss or recovery of data or programs, or loss of use of systems arising out of the Services only pursuant to the provisions in clause 11.
If you have ordered a Samsung technical support services offering, Samsung will provide Company’s Named Callers (as defined in the applicable service guide) with log-in credentials for access to Samsung’s Support Portal for the purposes of creating and tracking Company support requests (the “Support Portal”). Company agrees not to: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Support Portal available to any third party, other than the Named Callers; (ii) modify, adapt, or otherwise attempt to gain unauthorized access to the Support Portal or related systems or networks; (iii) use the Support Portal in any unlawful manner; (iv) use the Support Portal in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (v) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any software making up the Support Portal; (vi) use the Support Portal to store or transmit any sensitive personal data; or (vii) use the Support Portal to knowingly post, transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software. Samsung may suspend Company’s access to the Support Portal if Samsung becomes aware of any non-compliance with the foregoing provisions and Samsung shall only be liable to Company or any other third party for any such suspension or discontinuation of Company’s access and use of the Support Portal pursuant to the provisions in clause 11.
Samsung may, at its option and in its sole discretion, subcontract all or any part of its obligations under any Order (including to an Affiliate of Samsung). In the event that Samsung subcontracts any of its obligations, Samsung shall be responsible and liable for any such subcontractor or subcontractor personnel performance to the same extent as if such obligations were performed by Samsung or Samsung employees. For the purposes of these TOS, an “Affiliate” of a party means an entity controlling, controlled by, or under common control with that party. “Control” means direct or indirect control of fifty percent (50%) or more of the voting power to elect directors thereof, or for any other entity, the power to direct the management of such entity.
"Order" means the submission of a Company purchase order to Samsung that references and incorporates a Samsung quote, Samsung Service Guide, order acknowledgement, order form, service schedule, Services SKU or any other mutually-agreed form of order (including those accessible by URL), together with these TOS. Neither any pre-written terms of a Company purchase order nor any other general terms of business of the Company will be binding on Samsung without Samsung's express written confirmation of the applicability of such terms.
After receipt of your Order, Samsung will provide you with a scheduled date for the start of the Services (the “Service Start Date”) and for the end of the Services (the “Service End Date”). Your Order is considered binding by Samsung and the agreement regarding the respective Services is concluded once Samsung has provided you with a Service Start Date. The parties may enter into one or more Orders and each Order is independent from any other Order.
Quoted prices are effective until the expiration date of the Samsung quote. Until the agreement regarding the respective Services is concluded Samsung reserves the right, for any reason or for no reason whatsoever, to reject any Order received from Customer.
Company shall pay Samsung the Fees as set out in the applicable Order. Any increases in the Fees or cost of conducting the Services or providing the Deliverables incurred by reason of a Company request for a change in scope or modification of the Services or Deliverables shall be agreed in the change procedure and shall be borne by Company.
Samsung shall issue invoices in accordance with the Order. Company shall pay all amounts due under an Order within thirty (30) days after the date of the applicable invoice.
2.3. TRAVEL AND LODGING
Unless otherwise agreed in the applicable Order, the Fees are exclusive of any travel, lodging or other living expenses incurred in Samsung’s provision of the Services. Company shall promptly reimburse Samsung for Samsung’s reasonable expenses actually incurred in the performance of the Services hereunder upon Samsung’s presentation to Company of reasonable documentation evidencing such expenses.
All costs shall be paid in Euro and shall be exclusive of taxes. Any taxes, duties, excises or tariffs imposed on Fees paid in respect of an Order shall be the responsibility of Company notwithstanding any change in law, policy or tax rate impacting the amount of taxes required to be remitted in connection with an invoice referred to in Section 2.2; provided, however, that Company shall have no responsibility for taxes calculated solely by reference to the net income of Samsung. If Samsung is required by law to directly pay any taxes, fees, excises, tariffs or other charges for which Company has responsibility pursuant to this Section 2.4, Company shall promptly reimburse Samsung upon Samsung’s presentation to Company of documentation evidencing such payment.
2.5. LATE PAYMENT
Payment terms shall be strictly enforced, and late payments shall be assessed monthly with interest equal to the applicable statutory interest rate per annum. Should Company fail to make timely payments under an Order, Samsung may, at its discretion, suspend further performance of all Services, without limiting any other remedies it may have pursuant to these TOS. If Company fails to pay any due and payable amounts within ten (10) days after receipt of Samsung’s written notice that such amounts are past due, Company shall be deemed to be in material breach hereunder and Samsung may immediately terminate any Order and pursue all other remedies.
3. REPRESENTATIONS, WARRANTIES AND CONVENANTS OF COMPANY
As of the date of each Order hereunder:
3.1. FORMATION; AUTHORITY
Company represents, warrants and covenants that: (a) it is duly formed, validly existing and in good standing under the laws of the country of its formation; (b) it has all requisite power and authority to execute, deliver and perform its obligations under these TOS and any Order, and any executed modification thereof; (c) its performance under these TOS and any Order have been duly authorized by all requisite corporate action; and (d) that these TOS together with the Order constitutes the legal, valid and binding agreement of Company, enforceable against it in accordance with its terms.
Company represents, warrants and covenants that –
3.2.1.it is fully aware of and will comply with, and will not take any action or omit to take any action that would cause either Company or Samsung to be in violation any applicable anti-corruption laws, or any regulations promulgated under any such laws.
3.2.2.neither it nor any of its employees is an official or employee of any government (or any department, agency or instrumentality of any government), state owned enterprise or a public international organization such as the United Nations, or a representative or any such person (each, an “Official”).
3.2.3.to its knowledge, neither it nor any of its employees has offered, promised, made or authorized to be made, or provided any contribution, thing of value or gift, or any other type of payment to, or for the private use of, directly or indirectly, any Official for the purpose of influencing or inducing any act or decision of the Official to secure an improper advantage in connection with, or in any way relating to, (i) any government authorization or approval involving Samsung, or (ii) the obtaining or retention of business by Samsung.
3.2.4.it will not in the future offer, promise, make or otherwise allow to be made or provide any such payment and that it will take all lawful and necessary actions to ensure that no such payment is promised, made or provided in the future by any of its employees.
If Company does not abide with any of the above mentioned representations, warranties, or covenants, then Samsung shall reserve its right to terminate all Orders immediately without any prior notice or penalty, in addition to any other remedies available to it at law and/or in equity.
Company represents, warrants and covenants that –
3.3.1.it possesses all necessary rights and licenses to all information, data, intellectual property, software, services, systems, facilities or other materials it provides to Samsung under an Order (collectively, “Company Materials”);
3.3.2.Samsung’s use of any Company Materials for purposes of providing the Services does not contravene, violate or conflict with any other agreement to which Company or any other applicable party that is the owner of, or has any right to, a particular Company Material is a party; and
3.3.3.Samsung’s use of any Company Materials in connection with performing its obligations under these TOS or an Order (including, but not limited to incorporating, including or embedding Company Materials into, or using Company Materials in connection with creating any Deliverables) does not infringe, misappropriate or violate any third party right; and
3.3.4.if any Company Materials include or make use of any free, open source or other publicly available software (“FOSS”) and such Company Materials are to be embedded in or used in conjunction with a Deliverable, Company will provide Samsung with a complete and accurate list of such FOSS, including a copy of the applicable FOSS licenses and copyright notices.
Samsung warrants to Company that all Services (a) shall be performed in a professional and workmanlike manner in accordance with reasonable standards of the industry; and (b) shall conform in all material respects to the written specifications set forth in the applicable Order and, where applicable, the Samsung Service Guide at the time of performance provided that any changes to the Samsung Service Guide have been made in accordance with these TOS.
4.2. DISCLAIMER OF WARRANTIES
Except as expressly provided in this Section 4 with respect to Services or in an Order, Samsung provides the Services and deliverables on an “as is,” “where is” basis and makes no other representations or warranties, express or implied, as to the Services or Deliverables, including any warranty of merchantability, fitness for a particular purpose or non-infringement..
“Confidential Information” shall mean all business information, technical data or know-how, in whatever form, which the disclosing party (the “Discloser”) transmits to the receiving party (the “Recipient”) in any manner relating to the properties, business activities or operations of Discloser, including (i); all information of Discloser that is not known to the public, without regard to the form in which such information is disclosed; (ii) any and all of the foregoing which is prepared by Recipient or its employees or agents that contains, reflects or is based upon, in whole or in part, any of the Confidential Information; and (iii) the contents of discussions and negotiations between the parties concerning the Services or Deliverables. Confidential Information shall not include information that Recipient can demonstrate: (A) is or (through no improper action or inaction by Recipient or any affiliate, agent, consultant or employee of Recipient) becomes part of the public domain; (B) was lawfully in the possession of or known by Recipient on a non-confidential basis at the time of disclosure by Discloser; (C) was received on a non-confidential basis from a third party having a lawful right to disclose such information; or (D) was independently developed by Recipient without reference to or use of the Confidential Information of Discloser as demonstrated by Recipient’s records.
5.1. NON-DISCLOSURE AND USE
Recipient agrees to keep confidential and not to use the Confidential Information of Discloser for any purpose other than in furtherance of the performance or receipt of the Services, or with respect to Samsung as Recipient, the provision of the Services or Deliverables. Recipient shall not disclose Discloser’s Confidential Information to any person or entity other than Recipient’s employees, agents, advisors, subcontractors, and service providers and representatives with a need to know the Confidential Information in order to carry out the purpose contemplated by these TOS and who agree to be bound by Recipient’s obligations under these TOS with regard to nondisclosure and use of such Confidential Information. Recipient will not (and will cause its employees, Affiliates or agents not to) reverse-engineer, decompile or disassemble any part of, or remove any proprietary marking from, Discloser’s Confidential Information.
Recipient shall use at least the same degree of care to safeguard and to prevent disclosure to third parties of Confidential Information as it employs to safeguard its own information of a similar nature, but in no event less than reasonable care. Recipient shall promptly (i) notify Discloser in writing of the details and circumstances of any unauthorized disclosure, misuse or misappropriation of any of Discloser’s Confidential Information (an “Unauthorized Use”) which may come to Recipient’s attention; (ii) use best efforts to rectify or cure such Unauthorized Use and retrieve any such disclosed Confidential Information; and (iii) use best efforts to provide assistance to and cooperate with Discloser to rectify or cure such Unauthorized Use and to prevent further misuse or disclosure of such Confidential Information.
5.3. MANDATORY DISCLOSURE
If Recipient becomes legally compelled to disclose any of Discloser’s Confidential Information, Recipient shall (i) promptly notify Discloser of such requirement – if legally possible - before any disclosure is made, otherwise afterwards without undue delay, so that Discloser may seek a protective order or other appropriate remedy limiting disclosure or use of such information; and (ii) provide reasonable assistance to Discloser to seek such remedy at Discloser’s expense. If such protective order or other remedy is not obtained, Recipient may furnish only that portion of such Confidential Information that, in the written opinion of its legal counsel, it is legally required to disclose, and Recipient agrees to make commercially reasonable efforts to obtain assurance that confidential treatment will be accorded to the Confidential Information.
5.4. OWNERSHIP, NO RIGHTS GRANTED
Discloser will retain the title and full ownership rights to its Confidential Information. No license, express or implied, in the Confidential Information is granted to Recipient other than to use the information in the manner and to the extent expressly authorized herein.
5.5. RETURN OF CONFIDENTIAL INFORMATION
Upon the written request of Discloser, all of Discloser’s Confidential Information in tangible form shall be, at Discloser’s sole discretion, either promptly returned to Discloser or promptly destroyed by Recipient, and in either case not retained by Recipient or its Affiliates in any form; provided, however, if Confidential Information cannot be purged from Recipient’s information or communications systems using commercially reasonable efforts, Recipient shall suppress such Confidential Information and allow it to be accessible only to Recipient’s employees with administrative privileges who shall be subject to a confidentiality obligation to Recipient at least as protective as those contained in these TOS. Notwithstanding anything to the contrary contained herein, Recipient’s legal department may retain an archival copy of all or any portion of Discloser’s Confidential Information to the extent required by applicable law or regulation or for the purpose of defending or prosecuting claims relating to these TOS. The rights and obligations of the parties regarding the non-disclosure and use of Confidential Information exchanged under these TOS will survive any return, retention or destruction of any Confidential Information.
Unless otherwise set forth in an Order, the following provisions in this Section 6 will apply to the Orders under these TOS.
6.1. SAMSUNG INTELLECTUAL PROPERTY
As between Samsung and Company, Samsung will own all copyrights, patents, trademarks, trade secrets, and other intellectual property rights (“IPR”) in any materials, know-how, methodologies, processes, techniques, tools, forms, templates, and software (whether written or machine-readable), collectively “Materials” that are: (i) owned by or licensed to Samsung, its subcontractors, or their respective Affiliates prior to the Service Start Date, (ii) developed by Samsung, its subcontractors, or their respective Affiliates during the provision of the Services or the development or delivery of the Deliverables (including the Deliverables, themselves), or otherwise used by Samsung to perform the Services or develop or deliver the Deliverables, or (iii) modifications, enhancements, and derivative works of the Materials described in (i) through (ii) (collectively, “Samsung IPR”). For the avoidance of doubt, Samsung IPR does not include Company Materials provided to Samsung for Samsung’s use in connection with the Services or delivery of the Deliverables.
6.2. LICENSE TO SAMSUNG
Company grants to Samsung a non-exclusive, irrevocable, perpetual, royalty-free, sub-licensable and transferable right and license to use, copy, make derivative works of, distribute, display, sublicense any Company Materials solely to the extent necessary for Samsung to provide the Services and Deliverables under these TOS and any Order.
6.3. LICENSE TO COMPANY FOR DELIVERABLES
With respect to any Deliverables that constitute software (a “Software Deliverable”), subject to Company’s compliance with: (i) these TOS; (ii) the terms of an Order; and (iii) the terms of any applicable third party licenses of IPR included in a Software Deliverable and agreed between the parties, Samsung grants Company a non-exclusive, non-transferable, non-sublicensable, revocable and limited license to use, copy, install and display such Software Deliverables solely for the internal use of Company or its Affiliates for the original purpose and functionality of that Deliverable. If any Samsung IPR, or a portion thereof, is delivered with a Software Deliverable, Samsung hereby grants to Company a non-exclusive, royalty free, fully paid up, revocable license to use, copy, install and display such Samsung IPR, provided however that the foregoing license does not authorize Company to separate Samsung IPR from the Software Deliverable with which it was delivered.
Company agrees that as part of a Deliverable, Samsung may make use of FOSS. If so, Samsung will include in the applicable Order a list of such FOSS, including notice of the associated FOSS license(s) and terms as of its delivery to Company as part of a Deliverable. Company acknowledges and agrees that its use and distribution of any such FOSS is subject to the terms of the applicable FOSS license(s), and that it is responsible for its compliance with the terms of such FOSS license(s). Company expressly acknowledges and agrees that, prior to copying, modifying, or distributing any FOSS, it will confirm that it has all necessary rights and permissions to do so from the applicable third party licensor (the “licensor”), which confirmation may include obtaining a separate license from the licensor expressly authorizing it to do so.
Company may from time to time, provide suggestions, enhancement or other feedback to Samsung with respect to the Services or Deliverables or related documentation (collectively, “Feedback”). Company agrees that all Feedback is and shall be given by Company entirely voluntarily. Samsung shall be free to use disclose, reproduce, license or otherwise distribute and exploit the Feedback in its discretion, without restriction, accounting, or other obligation of any kind or nature. The use of the Feedback will not impose any confidentiality or other obligations on Samsung relating to the Feedback. However, Samsung agrees not to disclose the source of such Feedback to third parties.
8.1. INDEMNIFICATION BY COMPANY
Company shall be solely responsible for its use of the Services and Deliverables in connection with its business operations, including, but not limited to, protecting against loss or error resulting from use of any or all of the Services or Deliverables.
Samsung shall defend or settle any third party claim that the Services infringe third party intellectual property, provided that Company (i) promptly notifies Samsung in writing of such claim; (ii) grants Samsung (to the extent legally feasible) sole control over the defense and settlement thereof pursuant to Section 8.3 and (iii) cooperates with any request by Samsung for assistance in defending such claim; provided, however, that Samsung will have no obligation or liability with respect to any such claim to the extent the claim is based on (A) the specifications set forth in the applicable Orders, or any modifications made by Samsung thereto pursuant to Company’s instructions or request; (B) any combination of the Services with Company or third party services or products or Company Materials; (C) the use of the Services for a purpose or in a manner for which they were not intended or designed; (D) any modification made to the Services by Company or any third party; (E) any intellectual property right owned or licensed by Company, including any Company Materials; or (F) any FOSS. The foregoing constitutes Samsung’s entire liability and Company’s sole and exclusive remedy for any infringement claim arising hereunder.
Promptly after receipt by either party (in each case, an “Indemnitee”) of notice of the commencement or threatened commencement of any action or proceeding involving a claim in respect of which Indemnitee is entitled to indemnification under this Section 8, Indemnitee shall notify the other party (in such instance, the “Indemnitor”) of such claim. No delay or failure to so notify Indemnitor shall relieve Indemnitor of its obligations under these TOS except to the extent that Indemnitor has suffered actual prejudice by such delay or failure. Within thirty (30) days following receipt of notice from Indemnitee relating to any claim, but no later than fifteen (15) days before the date on which any response to a complaint or summons is due, if applicable, Indemnitor shall notify Indemnitee that Indemnitor shall assume control of the defense and settlement of such claim (a “Notice of Assumption”).
If Indemnitor delivers a Notice of Assumption within the required notice period, Indemnitor shall – to the extent permitted under applicable law - assume control (subject to Indemnitee’s right to participate at Indemnitee’s cost and expense) over the defense and settlement of the claim and diligently defend the claim; provided, however, that (i) Indemnitor shall keep Indemnitee fully apprised as to the status of the defense; and (ii) Indemnitor shall obtain the prior written approval of Indemnitee before entering into any settlement of such claim that does not include a full and final release of Indemnitee, or any settlement asserting any liability against Indemnitee, imposing any obligations or restrictions on Indemnitee, ceasing to defend against such claim or otherwise adversely impacting Indemnitee.
If Indemnitor does not deliver a Notice of Assumption relating to any claim within the required notice period, or if, after the assumption of the defense by Indemnitor, Indemnitor has failed to defend the claim diligently, Indemnitee shall have the right to defend the claim in such manner as it may deem appropriate. Indemnitor shall promptly reimburse Indemnitee for all reasonable costs and expenses incurred by Indemnitee, including attorneys’ fees, in connection therewith to the full extent of Indemnitor’s indemnification obligation under this Section 8.
9. TERM AND TERMINATION
9.2. These TOS shall be effective as of the Service Start Date and shall remain in effect for a period as specified in the order. Thereafter, the Agreement will automatically renew under the same terms and conditions for additional one year terms, unless a Party delivers written notice of non-renewal to the other Party at least three months prior to the expiration of the then-current term. TERMINATION FOR INSOLVENCY
Samsung may immediately terminate an Order by written notice to Company if (i) Company shall become insolvent or make a general assignment for the benefit of creditors; (ii) Company files a petition for bankruptcy or has filed against it a petition for bankruptcy which is not dismissed within thirty (30) days; or (iii) Company proposes any dissolution or becomes involved in legal, financial or reorganization proceedings that exclude the diligent performance and satisfactory completion of Company’s obligations hereunder.
9.3. TERMINATION FOR BREACH
Either party may terminate an Order immediately upon written notice to the other party in the event that the other is in material breach or default under these TOS or the terms of an Order and (if curable) fails to remedy such breach within thirty (30) days of notice thereof from the non-breaching party.
With respect to an Order, any provision of these TOS that contemplates performance or observance subsequent to any termination or expiration of an Order shall survive any termination or expiration and continue in full force and effect.
Samsung shall be fully liable in accordance with the statutory provisions for intent and gross negligence, fraud or any other case of mandatory liability (e.g. under the German Product Liability Act) as well as for damages resulting from injury to life, body or health.
Except in cases addressed in the preceding sentence, in the event of ordinary or slight negligent breach of material contractual obligations ("cardinal obligations" – "Kardinalpflichten")), Samsung shall be liable only for typical foreseeable damages. Material contractual obligations are those obligations which are vital for the proper performance of the contract. Such typical foreseeable damages shall be limited to a maximum aggregate amount of EUR 40,000.00 per contract year. Any other liability of Samsung for ordinary/slight negligence shall be excluded.
The failure or delay of Samsung in its performance of its obligations under these TOS or any Order is in particular excused to the extent such failure is a result of: (i) any act or omission of Company or any entity or individual acting on Company’s behalf including Company’s failure to perform (or cause to be performed) its obligations hereunder, (ii) unavailability of Company’s materials or systems, including those provided by third parties, (iii) the reliance of Samsung on instructions, authorizations, approvals or other information from Company’s representative(s); or (iv) any act or omission of a third party not under the control of Samsung.
11. FORCE MAJEURE
Samsung shall not be held responsible for any delay or failure in performance of any part of these TOS or an Order to the extent such delay or failure is attributable to a force majeure event, including without limitation: power or telecommunications failures or outages, hardware failures, software defects, fires, explosions, epidemics, riots, civil disturbances, malicious damage, industry-wide shortages of labor or materials, work stoppages, strikes and other similar events, labor disputes, accidents, weather, floods, storms, earthquakes and other natural disasters, acts of God, war, terrorism, blockades, embargoes, prohibitions or restrictions or changes in applicable law or delays arising from compliance with any law or government regulation or other similar causes beyond its control and without the fault or negligence of Samsung or its subcontractors.
All notices, demands and other communications shall be in writing to the respective addresses listed in the Order or to such other address as either party may designate by providing notice in accordance with this Section 12.1.
Samsung may assign an Order without the prior consent of Company. Company may not assign an Order without the prior consent of Samsung.
12.3. INDEPENDENT CONTRACTOR
The relationship between the parties under these TOS is that of independent contractors, and nothing contained herein shall be construed to create a relationship of employer and employee or principal and agent between Company and Samsung nor shall it be deemed a partnership, joint venture or fiduciary relationship for any purpose. Neither party shall act or have authority to act for or on behalf of the other party, and all representations made and agreements executed by each party shall be such party’s sole responsibility.
12.4. GOVERNING LAW; JURISDICTION
These TOS will be governed by, and construed and enforced in accordance with, the laws of the Federal Republic of Germany, excluding the principles of conflict of laws thereof that would cause the laws of another jurisdiction to apply. The parties hereby irrevocably submit to the jurisdiction of the Courts in Frankfurt/Main.
Each party shall comply, at its own expense, with the provisions of all applicable foreign, federal, state, county and local laws, ordinances, regulations and codes, including procurement of any required permits or certificates, applicable to such party’s performance hereunder.
12.6. EXPORT CONTROL
Company shall not transfer, directly or indirectly, any product, technical data, software or Confidential Information furnished hereunder to any country without first obtaining all required licenses or other governmental approvals and otherwise complying with all applicable export control laws.
12.7. INTERPRETATION; PRECEDENCE
The section headings included in these TOS are for convenience only and shall not limit or otherwise affect the interpretation of any of the terms or provisions herein. Each Order entered into by the parties during the Service Term shall be governed by these TOS.
In the event of a conflict between the terms in these TOS and the terms in an Order, the terms in these TOS will take precedence unless the Order expressly indicates otherwise.
12.8. ENTIRE AGREEMENT; SEVERABILITY; COUNTERPARTS
These TOS, including all exhibits, schedules and Orders referenced herein, constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all prior verbal or written agreements with respect to such subject matter, including any previous Nondisclosure Agreements or similar agreements between the parties. No amendment, waiver or modification of these TOS or an Order will be binding upon either party unless made in writing and signed by duly authorized representatives of such party, and no failure or delay in enforcing any right will be deemed a waiver of such right.
If any term or provision of these TOS shall be found to be illegal or unenforceable, such illegal or unenforceable provision will be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the intention of the parties expressed herein.
These TOS may be entered into in any number of counterparts and by the parties to it on separate counterparts each of which when executed and delivered shall be an original but all these counterparts shall together constitute one and the same instrument.
12.9. HAZARDOUS ACTIVITY
The Services and Deliverables are not intended for use, and shall not be used, in the operation of nuclear facilities, aircraft navigation, communication systems, air traffic control machines, medical devices, medical equipment or other activities in which the failure of the Services to attain a desired result could lead to death, personal injury, or physical or environmental damage.
12.10. PUBLICITY; ADVERTISING
Company shall not advertise, promote or otherwise publicize matters relating to these TOS, including the existence of any relationship between the parties, without the prior written consent of Samsung. Except as otherwise expressly provided in these TOS, Company shall not use any trade name, trademark, service mark, insignia, symbol or other identification of Samsung without Samsung’s prior written permission.
IN WITNESS WHEREOF, the parties hereto acting through their duly authorized representatives, have executed this Agreement.