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Last Updated: November 2, 2017
IMPORTANT— SAMSUNG OFFERS SOFTWARE AND DOCUMENTATION FOR USE WITH VARIOUS SAMSUNG ARTIK PRODUCTS, INCLUDING ARTIK TOOL KITS, ARTIK BOARDS, AND ARTIK MODULES. BY DOWNLOADING ANY SOFTWARE OR DOCUMENTATION MADE AVAILABLE BY SAMSUNG IN CONNECTION WITH THE ARTIK.IO WEBSITE OR OPENING THE PACKAGE FOR AN ARTIK PRODUCT CONTAINING SUCH SOFTWARE OR DOCUMENTATION, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT (“AGREEMENT”). IN ADDITION TO THE TERMS SET FORTH BELOW IN THE BODY OF THE AGREEMENT, CERTAIN SOFWARE MAY BE SUBJECT TO ADDITIONAL TERMS AND CONDITIONS, AS SET FORTH IN ADDENDUMS TO THIS AGREEMENT SPECIFIC TO SUCH SOFTWARE (“ADDENDUMS”). YOU AGREE THAT THIS AGREEMENT, INCLUDING ANY APPLICABLE ADDENDUMS, IS ENFORCEABLE LIKE ANY WRITTEN NEGOTIATED AGREEMENT SIGNED BY YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ANY APPLICABLE ADDENDUMS, DO NOT DOWNLOAD, INSTALL, AND/OR USE THE SOFTWARE, ARTIK PRODUCT, AND/OR DOCUMENTATION IN ANY WAY, AND IF APPLICABLE, PROMPTLY RETURN THE SOFTWARE, ARTIK PRODUCT, OR DOCUMENTATION TO SAMSUNG OR THE AUTHORIZED DISTRIBUTOR FROM WHOM YOU RECEIVED THEM. IF YOU AGREE WITH AND ACCEPT THESE TERMS AND CONDITIONS, THIS AGREEMENT AND ANY APPLICABLE ADDENDUMS BECOMES LEGALLY BINDING BETWEEN YOU AND SAMSUNG AND YOU MAY ONLY USE THE SOFTWARE, ARTIK PRODUCT, AND/OR DOCUMENTATION IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
- “ARTIK Boards” means Samsung’s proprietary ARTIK hardware development, starter, and demo boards designed for creating internet of things (“IoT”) applications and devices.
- “ARTIK Products” means Samsung’s proprietary ARTIK hardware products, such as ARTIK Boards, ARTIK Modules, ARTIK S Modules, ARTIK Tool Kits, or other ARTIK hardware or devices that Samsung may provide, such as the ARTIK compiler, as may be more specifically described in the applicable Documentation.
- “ARTIK Modules” means Samsung’s proprietary ARTIK hardware modules designed for creating IoT applications and devices. Such modules may be referred to as ARTIK 0, ARTIK 1, ARTIK 5, ARTIK 7, ARTIK 10 and/or other ARTIK lines. Certain Software for ARTIK Modules, such as TrustWare Software for use with ARTIK “S” Modules, which includes additional security features such as Secure OS and Secure OTA, will be subject to additional license restrictions, terms, and conditions, as set forth below in Section 2.
- “ARTIK Tool Kits” means the ARTIK Boards, Modules, or other ARTIK Products and any related Software and Documentation enclosed in the Samsung ARTIK Developer, Starter, or Demo Kits.
- “ARTIK.IO Website” means the website located at https://www.artik.io/ and any other website or portal through which Samsung distributes the Software pursuant to this Agreement
- “Authorized Distributor” means the person or entity authorized in writing by Samsung to distribute the Tool Kits to you.
- "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).
- “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.
- “Developer” or “you” means the person or entity named in the invoice for the product purchased or the registered user of the ARTIK.IO Website to which the software or documentation was provided.
- “Developer Product(s)” means any software, hardware or other product or service created by you or on your behalf for use with an ARTIK Product.
- “Documentation” means any explanatory information concerning Samsung products or services provided with the ARTIK Tool Kit(s), Hardware, and/or Software, or otherwise made available by Samsung through the ARTIK.IO Website.
- “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.
- "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.
- “Samsung” (also referred to as “we,” “us” or “our”) means Samsung Semiconductor, Inc., together with any of its affiliates that license materials for the Software, ARTIK Products, and Documentation.
- “Software” means any software provided by Samsung intended to work with ARTIK Products or other Samsung products and services, including, but not limited to, the software made available for download through the ARTIK.IO Website and the software stack designed for creating IoT applications, as more specifically described in the Documentation, and upgrades thereto, if any. Notwithstanding the foregoing, “Software” excludes the Samsung ARTIK Cloud Platform and related ARTIK Cloud software, which is provided by Samsung pursuant to the Samsung ARTIK Cloud Platform Terms of Service and/or the Samsung ARTIK Cloud Platform Developer License Agreement.
- "Third Party Software" means any software, computer programming code or accompanying documentation owned or provided 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.
- "Update(s)" means bug fixes, enhancements, modifications, new releases, new versions, supplements, updates, or upgrades to the Software, Documentation, or any part thereof.
Your License to Use the Software
- 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 Developer a 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 an ARTIK Product; (ii) create Derivative Works of the Software as part of Developer Products that add significant and primary functionality to an ARTIK Product; (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 an ARTIK Product, and only if accompanied by an agreement that satisfies Section 2.7 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 an ARTIK Product.
- 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.
- Limitation on Developer Products. The Software and ARTIK Products are not intended for use in medical, lifesaving, 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.).
- Additional Terms and Conditions For Certain Software. Certain software provided by Samsung may be subject to additional terms and conditions, as set forth in Addendums to this Agreement, which will be made available by Samsung on the ARTIK.io website, and which may be updated by Samsung from time to time at Samsung’s sole discretion. Such software includes, but is not limited to, Samsung’s proprietary TrustWare Software, software included in the Samsung ARTIK “S” Modules, and related Documentation. To the extent there is a direct conflict between the terms and conditions in the body of this Agreement and in any applicable Addendum, the terms of the Addendum will control, but only to the extent necessary to resolve the conflict. Developer agrees to abide by any such applicable additional terms and conditions. Thus, for example and without limitation, the License granted in Section 2 does not grant Developer a license to use, reproduce, create derivative works from, distribute, perform, or display Samsung’s proprietary TrustWare Software to create, use, or operate any Developer Product that does not meet the requirements set forth in the TrustWare Addendum.
- Additional Terms re: Third Party Software. The Software licensed under this Agreement may contain Third Party Software, including any software (including libraries, databases, drivers and similar components, or portions thereof) that is made available for use under a free or open source license. Developer will comply with any restrictions and obligations (in addition to those listed in Sections 2 and 3) pertaining to such Third Party Software, which restrictions will be made available by Samsung at the ARTIK.io website, and which may be updated by Samsung from time to time at Samsung’s sole discretion.
- Additional Terms re: Source Code. Developer will be subject to the following obligations and restrictions applicable to any Software provided by Samsung in source code format (“Source Code”): (a) Developer may provide access to the Source Code solely to its employees who have a need to access the Source Code for purposes of exercising Developer’s applicable license(s) under this Agreement (“Authorized Employees”) and to Authorized Third Parties, provided that no Authorized Employees or Authorized Third Parties will be given access to any Source Code unless and until such parties: (i) have been apprised of and acknowledge the confidential and proprietary nature of the Source Code; (ii) have been trained with respect to the industry-standard procedures designed to preserve the confidentiality of the Source Code; and (iii) are subject to binding and enforceable obligations neither to use the Source Code (other than for purposes expressly permitted by this Agreement) nor to disclose such Source Code to any person or entity other than to another Authorized Employee or Authorized Third Party who has a need to access the Source Code for purposes of exercising Developer’s applicable license(s) under this Agreement; (b) Developer will not (and will not authorize or permit any third party to) allow hard copy printouts of any portion of the Source Code to exist except within secured locations; and (c) Developer will not (and will not authorize or permit any third party to) allow soft copy versions of any portion of the Source Code to reside on computers or networks unless such computers or networks are password protected (with such passwords only being made available to Authorized Employees). Developer agrees that Developer will be responsible and fully liable to Samsung for any breach, by any Authorized Employee or Authorized Third Party, of any obligations pertaining to the Source Code. Developer shall use its best efforts to protect the Source Code from unauthorized access, reproduction, disclosure or use. In the event Developer becomes aware of any unauthorized use or disclosure of the Source Code, Customer shall notify Samsung immediately in writing and will fully cooperate, at Developer’s expense, to minimize the effects of such unauthorized use or disclosure.
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 (excluding Third Party Software) 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;
- (c) prohibit the end user from (i) copying the Software, except as reasonably necessary for 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.
- 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) or terms specific to certain Third Party Software, you must not, directly or indirectly: (a) sell, redistribute, rent, lease, lend or sublicense all or any part of the Software or enable or allow others to do such things; or (b) copy, redistribute, decompile, reverse engineer, or disassemble all or any part of the Software 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.
- Proprietary Notices. You must ensure that the Samsung copyright disclaimers and other proprietary notices that appear in or on the Software or ARTIK Products or any part thereof are retained and reproduced in full in all copies or demonstrations involving the Software or ARTIK Products that you make or perform, as permitted under this Agreement.
- 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.
- Feedback. If you provide any ideas, suggestions, or recommendations related to the ARTIK Products, , 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.
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 ARTIK Products, Software, or any portion thereof, to provide services, if any, related to the ARTIK Products, Software, or any portion thereof, or to 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.
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 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 ARTIK Products, 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 ARTIK Products,, Software, Documentation, or any part thereof is offered or made available as part of the Developer Products 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 ARTIK Products will not be modified without the express approval of Samsung. You further acknowledge that the FCC requirements provide that the ARTIK Products may not be operated so as to cause harmful interference to licensed radio facilities and that the you as user of the ARTIK Products 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 Software and/or ARTIK Products.
- (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 will keep the Third Party Software separate from the Software and/or ARTIK Products in your Developer Product and will not cause any part of the Software or ARTIK Products 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) to which such items are not already subject at the time provided by Samsung. 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 Terms. Additionally, Developer shall not use the Software in such a manner, or take any other action, that would require the Software, in whole or part, to be subject to Open Source Terms to which such items are not already subject at the time provided by Samsung. “Open Source Terms” means any terms which require: (a) the Software be disclosed or distributed in source code form; and/or (b) the Software be licensed for the purpose of making modifications or derivative works; and/or (c) the Software be redistributable at no charge; and/or (d) the Software be permitted to be reverse engineered; and/or (e) the Software be used only for non-commercial purposes; and/or (f) the Software to include any third party attribution; and/or (g) any patent non-assert obligations or patent license by Samsung, its assignees or licensees.
- (i) You will not attempt to hide or obscure any features, functionality or content in your Developer Product.
- (j) You will not exploit the Software, ARTIK Products, or any portion thereof in any unauthorized manner.
- (k) The Software and ARTIK Products are not intended for use in medical, life saving, or life sustaining applications. You will not, through use of the ARTIK Products, 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.).
Our Rights and Obligations
- Updates and Maintenance. We may, at our sole option, extend, enhance, or otherwise modify the 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 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 Software licensed under this Agreement. To the extent we provide Updates, we will do so only for Samsung proprietary Software on the ARTIK.io Website. You are solely responsible for checking the ARTIK.io Website from time to time for such Updates and 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 ARTIK Products, Software, or Documentation.
Ownership of Intellectual Property
- Samsung Intellectual Property. Except for the limited licenses granted to you in this Agreement, all rights, title, and interest in and to the ARTIK Products, 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.
- 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.
- 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.
- 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 ARTIK Products, the licensing terms of which do not contain obligations of confidentiality.
- 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.
DISCLAIMER OF WARRANTY; LIMITATION OF LIABILITY
- Disclaimer of Warranty. THE SOFTWARE, ARTIK PRODUCTS, AND/OR ANY PART THEREOF, AND ANY UPDATES OR RELATED PRODUCTS OR SERVICES PROVIDED BY SAMSUNG IN CONNECTION WITH THE SOFTWARE OR ARTIK PRODUCTS 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 SOFTWARE, ARTIK PRODUCTS 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 SOFTWARE, ARTIK PRODUCTS, 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.
- 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 SOFTWARE, ARTIK PRODUCTS 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 SOFTWARE AND/OR ARTIK PRODUCTS OR THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00).
- 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 Software, ARTIK Products, 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”).
- You acknowledge that the Software and ARTIK Products are 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 Software or ARTIK Products in the development of any such Developer Products.
- 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 Software or ARTIK Hardware without the prior written consent of Samsung.
Term and Termination
- 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”).
- Right to Terminate. (a) You can terminate this Agreement immediately by stopping your use of the ARTIK Products 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 Software or ARTIK Products for any reason.
- 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, and 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.
- 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.IO Website. The current version of this Agreement will always be available on the ARTIK.IO 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.IO Website, the next time you login to the ARTIK.IO Website you will be prompted and required to consent to the Updated Agreement.
- 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.
- 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.
- 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.
- 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.
- 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.
- Export Control. You may not use, export, re-export, import, sell or transfer the Software, ARTIK Products, or any portion thereof except as authorized by United States law, the laws of the jurisdiction in which you obtained the Software or ARTIK Products, and any other applicable laws and regulations. In particular, but without limitation, the Software, ARTIK Products and any portion thereof 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 Software and/or ARTIK Products, 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 Software and/or ARTIK Products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, chemical or biological weapons.
- US Government End Users. The ARTIK Products are 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.
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 8 (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 (b) any litigation or other dispute resolution between you and Samsung arising out of or relating to this Agreement, the Software, the ARTIK Products, , 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.
- (d) 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.
- Entire Agreement; Governing Language. This Agreement contains the entire agreement between the parties with respect to the use of the Software and/or ARTIK Products 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.
ADDENDUM A TO THE SAMSUNG ARTIK DEVELOPER LICENSE AGREEMENT: SAMSUNG TRUSTWARE TERMS AND CONDITIONS
This Addendum A is an addendum to the Samsung ARTIK Developer License Agreement (“Agreement”) and provides additional terms and conditions governing your use of the Samsung TrustWare Software, Documentation, and any Updates thereto (collectively, “TrustWare Software”) and Samsung’s proprietary “S” Modules. By downloading the TrustWare Software or any portion thereof from the ARTIK.IO Website or opening the package for any ARTIK Product containing the TrustWare Software or any portion thereof, you are agreeing to be bound by the additional terms and conditions set forth in this Addendum. You agree that the Agreement, including the terms set forth in this Addendum, is enforceable like any written negotiated agreement signed by you. All terms and conditions embodied in the Agreement shall continue to apply to your use of all or any portion of the TrustWare Software, and all capitalized terms in the Agreement shall have the same meaning as those set forth in the Agreement. To the extent that there is any conflict between the terms and conditions of the Agreement and this Addendum, the terms and conditions of this Addendum shall control, but only to the extent necessary to resolve such conflict.
Definitions. When used in this Addendum, the following terms have the meanings indicated below. All other defined terms have the meanings ascribed to them in the Agreement or other provisions of this Addendum.
- “TrustWare” means the software developed by Samsung for supporting ARM TrustZone hardware security extensions. It consists of a secure operating system, drivers, a daemon and libraries. The operating system can be run in parallel with a more fully featured high level OS, such as Linux, Android on the same core.
- “TrustWare Highly Confidential Information means the TrustWare binaries which run on TrustZone and keys used by Trustware.
- “TrustWare Licensed Device” means a device that (i) incorporates a Samsung “S” Module and (ii) meets all of the requirements set forth in this Addendum.
Subject and Use.
Developer’s license under Section 2 of the Agreement is subject to two additional limitations with respect to TrustWare: (i) the term “Developer Product” in Section 2.1 is limited to a TrustWare Licensed Device and (ii) the term “ARTIK Product” is limited to a Samsung “S” Module.
- Defeating Functions: a TrustWare Licensed Device shall not include: (a) switches, buttons, jumpers or software equivalents thereof, (b) specific traces (electronic connections) that can be cut, or (c) control functions (including service menus and remote-control functions), in each case by which the provisions of the TrustWare can be defeated.
- Keep Secrets: a TrustWare Licensed Device shall be manufactured in a manner that is clearly designed to effectively frustrate attempts to discover or reveal (a) TrustWare Highly Confidential Information and (b) the methods and cryptographic algorithms used by TrustWare.
- Maintain Integrity: a TrustWare Licensed Device shall be manufactured in a manner that is clearly designed to effectively frustrate attempts to cause such products to use TrustWare Highly Confidential Information after unauthorized modification occurs.
Methods of Making Functions Robust.
TrustWare Licensed Device shall be manufactured using at least the following techniques in a manner that is clearly designed to effectively frustrate attempts to defeat the requirements set forth below.
Software: Any portion of the TrustWare Licensed Device that implements a part of TrustWare in software shall include all of the characteristics set forth in this Addendum. For the purposes of this Addendum, “software” shall mean the implementation of the functions as to which this Agreement requires a TrustWare Licensed Device to be compliant through any computer program code consisting of instructions or data, other than such instructions or data that are included in hardware. Such implementations shall:
- prevent the discovery of TrustWare Highly Confidential Information by reasonable means, including but not limited to: firmware encryption, execution of a portion of the implementation in privileged or supervisor mode, execution on a hardened operation system, and/or embodiment in a secure physical implementation; and
- be designed so as to perform self-checking of the integrity of its component parts with digital code signing technology and be designed to result in a failure of the implementation in order to ensure the authorized authentication or decryption functions in the event of unauthorized modification. The protection methods may include, but not limited to, secure boot, physical security, computer security.
Hardware: Any portion of the TrustWare Licensed Device that implements a part of TrustWare in hardware shall include all of the characteristics set forth in this Addendum. Such implementations shall:
- prevent the discovery of the TrustWare Highly Confidential Information by reasonable means. Such reasonable means may include for example, without limitation, embedding TrustWare Highly Confidential Information in memory that is embedded in silicon circuitry or in firmware which cannot reasonable be read, and/or by using the techniques described above for software implementation; By way of example, DRAM bus signal is inserted in the PCB inner layer or bus encryption rather than exposed and plain signal; and
- be designed such that attempts to reprogram, remove or replace hardware elements of a TrustWare Licensed Device in a way that would compromise the security of TrustWare would pose a serious risk of damaging the TrustWare Licensed Device so that it would no longer be able to act as TrustWare Licensed Device. By way of example, a component that is soldered rather than socketed may be appropriate for this means. The protection methods may include, but not limited to, removing or destruct JTAG debug interface completely for this means.
- Hybrid: The interfaces between hardware and software portions of TrustWare Licensed Device shall be designed so that they provide a similar level of protection which would be provided by a purely hardware or purely software implementation as described above.
Required Level of Robustness.
TrustWare Licensed Device shall be designed and implemented such that the TrustWare cannot be defeated or circumvented merely by an ordinary user using generally-available tools or equipment such as screwdrivers, jumpers, clips or soldering irons (“Widely Available Tools”), or using specialized electronics tools or software tools that are widely available for the specific purpose of bypassing or circumventing protection technologies used to meet the requirements set forth in this subpart. Such specialized electronic tools or software tools include, but is not limited to, EEPROM readers and writers, debuggers or decompilers (“Specialized Tools”), excluding devices or technologies whether Hardware or Software that are designed and made available for the specific purpose of bypassing or circumventing the protection technologies required by TrustWare (“Circumvention Devices”). The protection afforded by the TrustWare in a TrustWare Licensed Device shall be designed such that the security mechanism can only be defeated or circumvented with difficulty using professional tools or equipment, such as logic analyzers, chip disassembly systems, or in-circuit emulators or any other tools, equipment, methods, or techniques not described in the definition of Widely Available Tools and Specialized Tools in this section above such as would be used primarily by persons with professional skills or training, excluding professional tools or equipment that are made available only on the basis of a non-disclosure agreement or Circumvention Devices.
Although an implementation of TrustWare Licensed Device when designed and shipped may meet the above standards, certain tools and equipment which were not available at the time may become widely available at a reasonable price. This availability may lead to such implementation becoming non-compliant through no act of Developer.
Therefore, if: (a) one or more tools or equipment become generally available to users at a reasonable price, and (b) if such tools had been available at the time of design of a particular TrustWare Licensed Device, and such availability would have caused such products to fail to comply with these Robustness Rules, and (c) such availability, based on facts made known to the Developer, is likely to pose a substantial and imminent harm to other TrustWare Licensee, then within eighteen (18) months after learning of (a), (b), and (c), above, the Developer shall cease distribution of such TrustWare Licensed Device and shall only distribute TrustWare Licensed Devices which are compliant with these Robustness Rules in view of the then current circumstances, whether these be new or upgraded TrustWare Licensed Device.
Certification / Record Keeping / Audit Rights
- Upon Samsung’s request, Developer must certify to Samsung, at Developer’s expense, that each TrustWare Licensed Device meets all requirements set forth in the Agreement and this Addendum. Developer must document its certification with appropriate reports and supporting materials and will promptly make such documentation available to Samsung upon request. Samsung may also specify additional information or materials that Developer must submit for Samsung to assess Developer’s TrustWare Licensed Devices in connection with any certification request, and Developer agrees to promptly provide such information and materials.
- If Developer (a) makes any changes to an element of a TrustWare Licensed Device, which such element is required for compliance with the terms and conditions of the Agreement and this Addendum; (b) otherwise changes the implementation, operation, or functionality of a TrustWare Licensed Device; or (c) modifies the implementation of any TrustWare in a TrustWare Licensed Device, then, in each case, Developer will notify Samsung in writing of such change by emailing the Developer’s account representative. In each of the foregoing cases, or at any other time, in Samsung’s sole discretion, Samsung may require Developer to re-certify a TrustWare Licensed Device, as described above.
- Developer shall maintain account books and records demonstrating its compliance with all requirements set forth in the Agreement and this Addendum and maintain such records during the Term and for three (3) years thereafter. Samsung may, or may have an independent third party designated by Samsung, audit and inspect Developer at any time during the Term, and for a period of three years thereafter, to assess whether all TrustWare has been, and is being, used, in accordance with the terms of this Agreement and this Addendum. Samsung will provide Developer at least 5 days’ notice before commencing such an audit, and Developer will support, and will not in any way hinder or delay, the execution of a properly noticed audit.
- Developer will immediately suspend, or cause to be suspended, all manufacture, sales, and distribution of TrustWare Licensed Devices that no longer pass any Samsung-specified certification test or otherwise no longer comply with any of the obligations of this Agreement and this Addendum.
ADDENDUM B TO THE SAMSUNG ARTIK DEVELOPER LICENSE AGREEMENT: SAMSUNG CODESIGNER TERMS AND CONDITIONS
This Addendum B is an addendum to the Samsung ARTIK Developer License Agreement (“Agreement”) and provides additional terms and conditions governing your use of the Samsung Codesigner Software, Documentation, and any Updates thereto listed described in more detail below in Section 1.1 of this Addendum (“Codesigner Software”). By downloading the Codesigner Software or any portion thereof from the ARTIK.IO Website or opening the package for any ARTIK Product containing the Codesigner Software or any portion thereof, you are agreeing to be bound by the additional terms and conditions set forth in this Addendum. You agree that the Agreement, including the terms set forth in this Addendum, is enforceable like any written negotiated agreement signed by you. All terms and conditions embodied in the Agreement shall continue to apply to your use of all or any portion of the Codesigner Software, and all capitalized terms in the Agreement shall have the same meaning as those set forth in the Agreement. To the extent that there is any conflict between the terms and conditions of the Agreement and this Addendum, the terms and conditions of this Addendum shall control, but only to the extent necessary to resolve such conflict.
Definitions. When used in this Addendum, the following terms have the meanings indicated below. All other defined terms have the meanings ascribed to them in the Agreement or other provisions of this Addendum.
“Codesigner Software” means the codesigning software developed by Samsung for supporting ARTIK S modules, related documentation, and Updates thereto, including, but not limited to, the following software:
- Artik055s_codesigner; and
- Internal Development Only. Use of the Codesigner Software is for Developer’s internal development purposes only. It is not designed for commercial use.
- Commercial License Required. Any use of Codesigner Software for production purposes requires a separate commercial license with Samsung.
Limited License. Developer’s license under Section 2 of the Agreement for use of the Codesigner Software is strictly limited to subsections (i) and (ii) only. Developer does not have a license to:
....(iii) reproduce or distribute the Codesigner Software ... as a component of a Developer Product” or (iv) allow your end users to use, perform and display Codesigner Software ... to use and operate Developer Products ....”
Developer certifies, warrants, and agrees that it will abide by these limitations with respect to its use of Codesigner Software.