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Samsung ARTIK Developer Kit License Agreement
IMPORTANT—BY OPENING THE PACKAGE FOR THIS SAMSUNG ARTIK DEVELOPER KIT (“DEVELOPER KIT”) OR BY DOWNLOADING ANY DOCUMENTATION OR SOFTWARE (DEFINED BELOW) FROM THE ARTIK WEBSITE (DEFINED BELOW), YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, AND/OR USE THE DEVELOPER KIT, DOCUMENTATION AND/OR SOFTWARE IN ANY WAY, AND IF APPLICABLE, PROMPTLY RETURN THE DEVELOPER KIT AND ANY ACCOMPANYING DOCUMENTATION TO THE AUTHORIZED DISTRIBUTOR FROM WHOM YOU RECEIVED THE DEVELOPER KIT. IF YOU AGREE WITH AND ACCEPT THESE TERMS AND CONDITIONS, THIS AGREEMENT BECOMES LEGALLY BINDING BETWEEN YOU AND SAMSUNG AND YOU MAY ONLY USE THE DEVELOPER KIT, DOCUMENTATION AND/OR SOFTWARE IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
Samsung Electronics Co., Ltd., together with any of its affiliates that license materials for its Developer Kit (“Samsung”) “we,” “us” or “our” is offering software, development tools, hardware, specifications and other products and services for the development of Internet of Things (“IoT”) products and services that are compatible with the Samsung ARTIK Development Board and Module.
When used in this Agreement, the following terms have the meanings indicated below. All other defined terms have the meanings ascribed to them in other provisions of this Agreement.
1.1 “ARTIK Development Board” means Samsung’s proprietary ARTIK hardware development board designed for creating internet of things (“IoT”) applications and devices.
1.2 “ARTIK Module” means Samsung’s proprietary ARTIK hardware modules designed for creating IoT applications and devices. Such modules may be referred to as ARTIK 1, ARTIK 5, or ARTIK 10.
1.3 “ARTIK Website” means the website located at https://www.artik.io/.
1.4 “Authorized Distributor” means the person or entity authorized in writing by Samsung to distribute the Developer Kit to you.
1.5 “Authorized Users” means your employees or other authorized contractors or agents who have written and binding agreements with you to protect the unauthorized use and disclosure of Samsung’s and other third party Confidential Information (to the extent they will have access to such Confidential Information).
1.6 “Derivative Work” means any discrete modification to the Software made by Developer pursuant to this agreement and any modified, altered, enhanced or adapted version of the Software, or derivative work thereof (as that term is defined under applicable copyright law) based on the Software.
1.7 “Developer Kit” means the Hardware and any related Software and Documentation enclosed in the Samsung ARTIK Developer Kit.
1.8 “Developer Product(s)” means any software, hardware or other product or service created by you or on your behalf using the Developer Kit.
1.9 “Documentation” means any explanatory information concerning Samsung products or services provided with the Developer Kit, Hardware, and/or Software, or otherwise made available by Samsung through the ARTIK Website.
1.10 “Hardware” means the ARTIK Development Board, ARTIK Module(s) or any other hardware or devices that Samsung may provide, such as the ARTIK compiler, as more specifically described in the Documentation.
1.11 “Intellectual Property Rights” means any and all intellectual property and intellectual property rights, whether registered or not, including any applications therefor, including, (i) patents (all patents and applications therefor throughout the world, including, all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof); (ii) copyrights; (iii) copyrights in software; (iv) database rights; (v) design rights; (vi) semiconductor products; (vii) topographies and mask works, (viii) industrial designs; (ix) utility models; (x) trademarks; (xi) trade secrets; and (xii) other equivalent forms of intellectual property rights protection, now recognized or hereafter recognized under any applicable law in any jurisdiction worldwide.
1.12 “Open Source Software” means any software or software component, module or package that contains, or is derived in any manner (in whole or in part) from, any software that is distributed as free software, open source software or under similar licensing or distribution models, including, without limitation, software licensed or distributed under any of the following licenses or distribution models, or licenses or distribution models similar to any of the following: (a) GNU’s General Public License (GPL) or Lesser/Library GPL (LGPL); (b) the Artistic License (e.g., PERL); (c) the Mozilla Public License; (d) the Netscape Public License; (e) the Sun Community Source License (SCSL); (f) the Sun Industry Standards License (SISL); (g) the BSD License; (h) the MIT License; and (i) the Apache License.
1.13 “Software” means any software provided by Samsung intended to work with the Hardware or other Samsung products and services, including, but not limited to, the software made available for download on the ARTIK Website and the software stack designed for creating IoT applications, as more specifically described in the Documentation, and upgrades thereto, if any.
1.14 “Third Party Software” means any software, computer programming code or accompanying documentation owned by any third party including, but not limited to, any of following: (a) any software licensed from a third party; (b) any software placed in the public domain and accessible to anyone without any specific license terms attached thereto; (c) any software disclosed or distributed under a license that permits users to use, modify, improve or distribute such software and/or documentation and requires any or all of the following: (i) the making available of source code, object code and/or accompanying documentation of the software or any modifications to, or derivatives of, such software and/or documentation or (ii) the granting of the right to distribute, use, create modifications to, or create derivative works from, such software and/or documentation at no charge or on a royalty-free basis; or (d) any Open Source Software.
1.15 “Update(s)” means bug fixes, enhancements, modifications, new releases, new versions, supplements, updates, or upgrades to the Developer Kit, Software, Documentation, or any part thereof.
2. Your License to Use the Software
2.1 License to the Software. Subject to your compliance with the terms and conditions of this Agreement, and your payment to Samsung of fees, if any, specified in the applicable invoice, Samsung hereby grants the person or entity named in the invoice or as a registered user of the ARTIK Website (“you” or “Developer”) worldwide, non-exclusive, revocable, royalty-free non-sublicensable (except as set forth herein) license during the Term to (i) use and reproduce the Software or Derivative Works internally to develop one or more Developer Products for use with the Hardware; (ii) create Derivative Works of the Software as part of Developer Products that add significant and primary functionality to the Developer Kit; (iii) reproduce and distribute the Software, in object code form only, as a component of a Developer Product solely to the extent necessary for your end users to use and operate Developer Products with the Hardware, and only if accompanied by an agreement that satisfies Section 2.4 below; and (iv) allow your end users to use, perform and display the Software solely to the extent necessary for your end users to use and operate Developer Products with the Hardware.
2.2 Limited License. Except as expressly granted in this Section 2, Samsung does not grant you a license under any Samsung patent, copyright, trademark or other Intellectual Property Rights.
2.3 Limitation on Developer Products. The Developer Kit is not intended for use in medical, life saving, life sustaining applications. The License granted in Section 2 does not grant you a license to use, reproduce, create derivative works from, distribute, perform or display the Software to create, use, or operate any Developer Product for use in life support systems, critical care applications, human implantation, commercial aviation, nuclear facilities or systems or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage, or any military or defense application, or any governmental procurement to which special terms or provisions may apply (e.g. FARS, DFARS, etc.).
2.4 End User Agreement. Developer shall only furnish the Software to resellers, distributors and end users pursuant to legally enforceable contracts that:
(a) stipulate that the Software is licensed, not sold, and that title to and ownership of the Software and any portion thereof remain with Samsung;
(b) disclaim all express and implied warranties on behalf of Samsung, and exclude liability of Samsung and its licensors for any special, indirect, exemplary, incidental or consequential damages; and
(c) prohibit the end user from (i) copying the Software, except as reasonably necessary or internal back-up purposes; (ii) using and/or transferring the Software to any third party apart from a Developer Product; (iii) modifying the Software; or (iv) attempting to reverse engineer, decompile or disassemble any portion of the Software, or (e). exporting the Software or any underlying technology in contravention of any applicable U.S. or foreign export laws and regulations.
3. Your Obligations
3.1 Your Responsibilities. Except as otherwise allowed under this Agreement (which includes those rights to use the Software for or with your Developer Product granted to you under Section 2), you must not, directly or indirectly: (a) sell, redistribute, rent, lease, lend or sublicense all or any part of the Developer Kit, or enable or allow others to do such things; or (b) copy, redistribute, decompile, reverse engineer, or disassemble the Developer Kit or any part thereof, or enable or allow others to do such things. These restrictions apply except as prohibited by applicable law and only to the extent of that prohibition.
3.2 Proprietary Notices. You must ensure that the Samsung copyright disclaimers and other proprietary notices that appear in or on the Developer Kit or any part thereof, including but not limited to the Hardware or Software, are retained and reproduced in full in all copies or demonstrations involving the Developer Kit or any part thereof that you make or perform, as permitted under this Agreement.
3.3 Use of Trademarks and Logos. Other than the rights we grant to you in this Agreement, you will not use any trademarks, trade dress or other marks belonging or licensed to us (“Samsung Marks”) in any way unless we authorize that use in writing. All goodwill arising out of your authorized use of Samsung’s Marks shall inure to the benefit of and belong to Samsung.
3.4 Feedback. If you provide any ideas, suggestions, or recommendations related to the Developer Kit, Software, Documentation, or any part thereof (“Feedback”) to Samsung, Samsung may freely use, disclose, reproduce, license, distribute and otherwise commercialize the Feedback in any Samsung product, technology, service, specification or other documentation.
3.5 Collection and Use of Personal and Non-Personal Data.
(b) You agree that Samsung and its affiliates may collect and use technical and related information that is gathered periodically, including but not limited to information about your Developer Products, computer, system software, other software and peripherals. Samsung may use this information, as long as it is in a form that does not personally identify you, to improve the Developer Kit, to provide services, if any, related to the Developer Kit, verify compliance with this Agreement or for other business purposes. You agree to obtain all consents from the users of your Developer Products necessary for Samsung to collect and use this information.
(c) If you receive any Personal Information of end users who use your Developer Products, you agree to ensure the reliability of your employees and other staff who have access to such Personal Information and shall only act on instructions of Samsung in relation to the use of such Personal Information. You shall take all appropriate technical and organizational security measures to protect the Personal Information against unauthorized access, use, damage, destruction, deletion or loss and shall undertake such security measures reasonably requested by Samsung from time to time. You shall not transfer (directly or indirectly) or provide or facilitate access to any Personal Information of end users of your Developer Products except in accordance with all laws and regulations.
3.6 General Conditions and Requirements. You acknowledge and agree that your Developer Products must comply with the general conditions and requirements set out below:
(a) You will not, through use of the Developer Kit, Software, Documentation, any part thereof, or otherwise, create any Developer Product or other program that would disable, hack or otherwise interfere with any security, digital signing, digital rights management, content protection, verification or authentication mechanisms implemented in or through the Developer Kit, Software, Documentation, any part thereof, or other Samsung software, services or technology, or enable others to do so.
(b) You (i) will comply with all applicable legal and regulatory requirements, including but not limited to those of any jurisdiction in which the Developer Kit, Software, Documentation, or any part thereof is offered or made available and any privacy and data collection laws and regulations; and (ii) are solely responsible for obtaining all required and necessary permissions and/or approvals from relevant government or regulatory authorities.
(c) As a condition of use in accordance with Federal Communications Commission (“FCC”) requirements, you agree that the Hardware will not be modified without the express approval of Samsung. You further acknowledge that the FCC requirements provide that the Hardware may not be operated so as to cause harmful interference to licensed radio facilities and that the you as user of the Hardware must accept any interference received, including interference that may cause undesirable operation.
(d) You will not design or create Developer Products for the purpose of violating any legal rights of any person (including but not limited to privacy rights).
(e) You will be solely responsible for any and all claims and/or damages arising from or related to the download or use of interpreted code in any Developer Product, other than the code that is interpreted and run by the documented Application Programming Interface(s) (“API”) and built-in interpreters contained in the Developer Kit.
(f) Your Developer Products must not disable, override or otherwise interfere with any Samsung-implemented system including, but not limited to, those that are intended to notify a user that the user’s location data is being collected, transmitted, maintained, processed or used, or intended to obtain consent for such use. Developer Products may not provide services for which the user’s consent has been denied or withdrawn.
(g) If your Developer Product includes any Third Party Software, you must comply with all licensing terms applicable to such Third Party Software. However, you must separate the Third Party Software from the Developer Kit in your Developer Product and will not cause any part of the Developer Kit in your Developer Product, any derivative works thereof, and/or Samsung’s Confidential Information to be subject to the licensing terms applicable to such Third Party Software (e.g., public disclosure, public distribution). You will indemnify, defend and hold harmless Samsung, its distributors and its customers from and against any and all claims, demands, damages, costs or expenses (including reasonable attorney’s fees) and liabilities arising out of or in relation to the use of Third Party Software.
(h) If your Developer Product includes any Open Source Software, (i) you are responsible for compliance with all applicable Open Source Software license terms, including any source code availability requirements, and (ii) your Developer Product must not cause any non-Open Source Software (including Samsung-proprietary software) to become subject to the terms of any Open Source Software license.
(i) You will not attempt to hide or obscure any features, functionality or content in your Developer Product.
(j) You will not exploit the Developer Kit in any unauthorized manner.
(k) The Developer Kit is not intended for use in medical, life saving, or life sustaining applications. You will not, through use of the Developer Kit, Software, Documentation, any part thereof, or otherwise, create any Developer Product for use in life support systems, critical care applications, human implantation, commercial aviation, nuclear facilities or systems or any other applications where product failure could lead to injury to persons or loss of life or catastrophic property damage, or any military or defense application, or any governmental procurement to which special terms or provisions may apply (e.g. FARS, DFARS, etc.).
4. Our Rights and Obligations
4.1 Updates and Maintenance. We may, at our sole option, extend, enhance, or otherwise modify the Developer Kit, Software, Documentation, or any part thereof with or without notice. This Agreement governs any Updates that we make available—unless we provide a separate license is provided with the Update, in which case the terms of that license will govern the Update. Any Updates may have APIs, features, services and/or functionality that differ from your current version of the Developer Kit licensed under this Agreement. You are solely responsible for ensuring that your Developer Product functions properly after any such Update. You acknowledge that we have no obligation to provide any maintenance, technical or other support in respect of the Developer Kit.
5. Ownership of Intellectual Property
5.1 Samsung Intellectual Property. Except for the limited licenses granted to you in this Agreement, all rights, title, and interest in and to the Developer Kit, Software, Documentation, Updates, and any Samsung Confidential Information, that are made available to you under this Agreement, including but not limited to all related changes, Updates, improvements, Derivative Works and Intellectual Property Rights (“Samsung IP”) remain, at all times, the sole and exclusive property of Samsung. You agree to cooperate with Samsung to maintain Samsung’s ownership of the Samsung IP, and you agree to promptly provide notice of any claims or threatened claims relating to the Samsung IP. Other than the license rights expressly set out in this Agreement, Samsung does not grant to you and you do not receive, whether by implication, estoppel or otherwise, any ownership right, title or interest nor any security interest or other interest in any Intellectual Property Rights relating to the Developer Kit, nor in any copy of any part of the foregoing, nor any other licenses, immunity or rights, express or implied.
5.2 Your Intellectual Property. Except for the rights granted to Samsung in this Agreement and the Samsung IP, you and your licensors retain all right, title and interest in and to the Developer Products. Except for the Samsung IP, you may, subject to the terms of this Agreement, use, disclose, reproduce, distribute or otherwise exploit any ideas, suggestions or other feedback Samsung provides to you or your licensors regarding any Developer Product.
5.3 Derivative Works. Developer shall own all right, title and interest in any Derivative Works to the Software made by Developer, subject to Samsung’s ownership of the underlying Software and the restrictions on use of the Software contained herein; provided, however, that Developer hereby grants to Samsung and its Affiliates a perpetual, irrevocable, world-wide, exclusive, sublicenseable, royalty-free license to use, make, copy, sell, offer for sale, distribute, export, modify and create derivative works from, and otherwise exploit, such Derivative Works.
6.1 Confidential Information. You acknowledge and agree that the any information you receive from Samsung that is designated as confidential, or that would be reasonably understood to be confidential constitutes “Confidential Information” for the purposes of this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that you can demonstrate by written evidence: (i) is generally and legitimately available to the public through no fault or breach by you, (ii) that Samsung has generally made available to the public, (iii) that you independently developed without use or reliance of any Confidential Information, (iv) that you lawfully obtained from a third party who has the right to transfer or disclose the information to you without limitation, or (v) any Open Source Software included in the Developer Kit, the licensing terms of which do not contain obligations of confidentiality.
6.2 Use and Protections of Confidential Information. You must protect Confidential Information using a degree of care that is no less than that which you use to protect your own confidential information of the same or similar importance (and in any event, no less than a reasonable degree of care). You and your Authorized Users who have a “need to know” may use Confidential Information solely for the purpose of exercising your rights and performing your obligations under this Agreement. You acknowledge that any use of Samsung Confidential Information in violation of this Agreement would cause Samsung irreparable harm for which there may be no adequate remedy at law. Accordingly, you agree that Samsung shall have the right to apply to any court of competent jurisdiction for injunctive relief and specific performance, without prejudice to any remedies otherwise available to Samsung at law or in equity.
7. LIMITED WARRANTY; DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
7.1 Limited Warranty. The Hardware is provided with a limited ninety (90) day warranty on materials and workmanship. Samsung may, at its sole option, repair or replace any defective Hardware as the sole and exclusive remedy for a breach of the Hardware warranty above. This Limited Warranty is voided and inapplicable in the event that you modify the Hardware in violation of this Agreement.
7.2 Disclaimer of Warranty. EXCEPT AS SET FORTH IN SECTION 7.1, THE DEVELOPER KIT AND/OR ANY PART THEREOF, AND ANY UPDATES OR RELATED PRODUCTS OR SERVICES PROVIDED BY SAMSUNG IN CONNECTION WITH THE DEVELOPER KIT ARE PROVIDED ON AN “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS. SAMSUNG MAKES NO WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE DEVELOPER KIT AND/OR ANY PART THEREOF, UPDATES OR ANY RELATED PRODUCTS OR SERVICES AND SAMSUNG EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT. YOUR USE OF THE DEVELOPER KIT OR ANY PART THEREOF, INCLUDING ANY UPDATES OR RELATED PRODUCTS OR SERVICES, IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM SUCH USE INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO YOUR COMPUTER SYSTEM, HARDWARE, SOFTWARE OR LOSS OF DATA. SAMSUNG GIVES NO EXPRESS AND/OR IMPLIED WARRANTIES, GUARANTEE OR CONDITIONS.
7.3 Limitation of Liability. SUBJECT TO TERMS AND CONDITIONS OF THIS AGREEMENT AND TO THE FULLEST EXTENT ALLOWED AND PERMITTED BY APPLICABLE LAWS AND REGULATIONS, SAMSUNG SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU OR ANY THIRD PARTY THROUGH YOU FOR PERSONAL INJURY OR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR DELAY OF DELIVERY, LOSS OF PROFITS, LOSS OF DATA, LOSS OF GOODWILL, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, YOUR USE OF THE DEVELOPER KIT OR ANY PART THEREOF, INCLUDING ANY UPDATES OR RELATED PRODUCTS OR SERVICES PROVIDED BY SAMSUNG UNDER THIS AGREEMENT, OR YOUR DEVELOPMENT OF DEVELOPER PRODUCTS, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SAMSUNG HAS BEEN ADVISED OF OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. YOUR UNDERSTANDING, ACKNOWLEDGEMENT AND ACCEPTANCE OF THIS AGREEMENT ARE THE LEGAL BASIS AND CONSIDERATION FOR THE LICENSES GRANTED UNDER IT. IN NO EVENT SHALL SAMSUNG’S TOTAL LIABILITY TO YOU UNDER THIS AGREEMENT FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW IN CASES INVOLVING PERSONAL INJURY) EXCEED THE GREATER OF THE AMOUNT PAID TO SAMSUNG FOR THE DEVELOPER KIT OR THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00).
8.1 To the fullest extent permitted by law, you agree to indemnify, defend and hold harmless Samsung, its affiliates, directors, officers, employees, independent contractors and agents (each a “Samsung Indemnified Party”) from any and all claims, losses, liabilities, damages, expenses and costs (including without limitation reasonable attorneys’ fees) (collectively “Losses”) incurred by a Samsung Indemnified Party as a result of your (or your Authorized User’s) breach of this Agreement, any claims that your Developer Product violates or infringes any third party intellectual property or proprietary rights, or otherwise related to or arising from your (or any Authorized User’s) use of the Developer Kit or any part thereof, Updates, or other products and services provided by Samsung under this Agreement or your Developer Product or your (or any Authorized User’s) development or distribution of any Developer Product (each a “Claim”).
8.2 You acknowledge that the Developer Kit is not intended to be used in the development of any Developer Product where death, personal injury, or severe physical or environmental damage could result from errors or inaccuracies in the content, data or information provided by the Developer Product or by Developer Product failures. To the extent permitted by law, you agree to indemnify, defend and hold harmless each Samsung Indemnified Party from any Losses incurred by such Samsung Indemnified Party as a result of your use of the Developer Kit in the development of any such Developer Products.
8.3 You must not enter into a settlement or other agreement with any third party that affects Samsung’s rights or binds Samsung in any way related to or arising from your (or your Authorized User’s) use of the Developer Kit without the prior written consent of Samsung.
9. Term and Termination
9.1 Term of the Agreement. This Agreement is effective from the date of your acceptance until you or we terminate in accordance with the termination provisions of this Agreement (“Term”).
9.2 Right to Terminate. (a) You can terminate this Agreement immediately by stopping your use of the Developer Kit and/or Software; and (b) Samsung can terminate this Agreement immediately, (i) if you have or we believe that you have breached any terms of this Agreement; (ii) if we are required by law to terminate this Agreement or the rights granted by Samsung; or (iii) if we stop providing the Developer Kit for any reason.
9.3 What Happens when this Agreement Terminates. When this Agreement expires or terminates all rights granted to you in this Agreement will terminate. The provisions of Sections 1, 3, 5, 6, 7, 8, 9.3, 10 will survive the expiration or termination of this Agreement. Termination of this Agreement will be without prejudice to any other right or remedy Samsung may have now or in the future.
10.1 Changes to the Agreement. We may update this Agreement (“Updated Agreement”) from time to time, so it is important that you check back often for updates. If we think any of the changes are material, we may let you know by placing information on the ARTIK Website. The current version of this Agreement will always be available on the ARTIK Website. You can check the “Last Updated” date posted at the top to see when this Agreement was last updated. After we have posted such a notice on the ARTIK Website, the next time you login to the ARTIK Website you will be prompted and required to consent to the Updated Agreement.
10.2 Assignment. You may not assign the Agreement, in whole or in part, without Samsung’s prior written consent. Any attempt to do so without such consent shall be void. Samsung may assign this Agreement without your consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
10.3 Relationship Between You and Samsung; Third Party Rights. This Agreement will not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal relationship between you and Samsung, and you must not represent the existence of any such relationship, whether expressly, by implication or otherwise. This Agreement is not for the benefit of any third parties.
10.4 Development by Samsung. Nothing in this Agreement limits or otherwise affects Samsung’s right to acquire, develop, license, market, promote, or distribute any product or technology that performs the same or similar functions as the Developer Products or any other products or technologies that you develop, market, promote or distribute, or that otherwise competes with the Developer Products or such products or technologies.
10.5 Severability. If a court of competent jurisdiction finds any provision of this Agreement to be unenforceable for any reason, that provision of this Agreement shall be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect.
10.6 No Waiver; Construction. Our failure to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of our rights in this Agreement, at law or in equity, or a waiver of any other provisions or the right to take action in respect of a subsequent default by you in the performance or compliance with any of the terms and conditions in this Agreement. Any laws or regulations that provide that the language of a contract will be construed against the drafter will not apply to this Agreement. Section headings are for convenience only and are not to be considered in construing or interpreting this Agreement.
10.7 Export Control. You may not use, export, re-export, import, sell or transfer the Developer Kit except as authorized by United States law, the laws of the jurisdiction in which you obtained the Developer Kit, and any other applicable laws and regulations. In particular, but without limitation, the Developer Kit may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Developer Kit, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Developer Kit for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, chemical or biological weapons.
10.8 US Government End Users. The Developer Kit is a “Commercial Item”, as that term is defined at 48 C.F.R. § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. § 12.212 or 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. § 12.212 or 48 C.F.R. §§ 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights are reserved under the copyright laws of the United States.
10.9 Governing Law; Venue.
(a) This Agreement shall be governed by and construed in accordance with the laws of the State of California, USA, without regard to any conflict-of-laws rules. All disputes, controversies or claims between the parties arising out of or in connection with this Agreement (including its existence, validity or termination) shall be finally resolved by binding arbitration to be held in Santa Clara County, California 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.
(b) Notwithstanding the foregoing, if you are an agency, instrumentality or department of the federal government of the United States, then this Agreement shall be governed in accordance with the laws of the United States of America, and in the absence of applicable federal law, the laws of the State of California, USA will apply. Further, and notwithstanding anything to the contrary in this Agreement (including but not limited to Section 9 (Indemnity)), all claims, demands, complaints and disputes will be subject to the Contract Disputes Act (41 U.S.C. §§ 601-613), the Tucker Act (28 U.S.C. § 1346(a) and § 1491), or the Federal Tort Claims Act (28 U.S.C. §§ 1346(b), 2401-2402, 2671-2672, 2674-2680), as applicable, or other applicable governing authority.
(c) If you (as an entity entering into this Agreement) are a U.S. public and accredited educational institution, then (a) this Agreement will be governed and construed in accordance with the laws of the state (within the U.S.) in which your educational institution is domiciled, except that body of state law concerning conflicts of law; and
(d) any litigation or other dispute resolution between you and Samsung arising out of or relating to this Agreement, the Developer Kit, or your relationship with Samsung will take place in federal court within the Northern District of California, and you and Samsung hereby consent to the personal jurisdiction of and exclusive venue of such District unless such consent is expressly prohibited by the laws of the state in which Licensee’s educational institution is domiciled.
(e) This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
10.10 Entire Agreement; Governing Language. This Agreement contains the entire agreement between the parties with respect to the use of the Developer Kit licensed hereunder and supersedes all existing agreements and all other oral, written or other communications between the parties concerning this subject matter. If we provide any translation of this Agreement to fulfill local requirements and there is a dispute between the English and any non-English version, the English version of this Agreement governs.