End User License Agreement for Enterprise for Samsung SDS IAM & EMM
This End User License Agreement for Enterprise (“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.
3. “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.
4. “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.