KNOX DEVELOPMENT AND LICENSE AGREEMENT ( Agreement )

Transcription

1 KNOX DEVELOPMENT AND LICENSE AGREEMENT ( Agreement ) Effective as of the date of registration by the above developer owner with legal responsibility to sign on behalf of the company enters into the registration form. BETWEEN Samsung Electronics Co., Ltd. ( Samsung ) AND [ The Company ] ( Licensee ) 1

2 1. Definitions. The following definitions (and additional definitions in the text) will apply to this Agreement: Activate means to authorize an Application to make valid, authorized API calls for KNOX Solution after Samsung checks the validity of Application with Developer s Commercial License Key. For the avoidance of any doubt, Customer needs to purchase End User s License Key for its End User to use KNOX Solution. "Activation" means a process to Activate. "Affiliate" means, with respect to any entity, any other entity directly or indirectly controlling, controlled by, or under direct or indirect common control with such entity. An entity shall be deemed to control another entity if such entity possesses, directly or indirectly, the power to (i) vote 50% or more of the securities having ordinary voting power for the election of directors of such other entity or (ii) direct or cause the direction of the management or policies of such other entity, whether through the ownership of voting securities, by contract or otherwise. "Application" means a software program developed and owned by Licensee using the SDK for operation of the KNOX Solution in the Samsung Devices in compliance with the Documentation and Samsung KNOX Quality Criteria, including without limitation all bug fixes, enhancements, modifications, new releases, new versions, revisions, supplements, updates and upgrades. "Authorized Users" means Licensee s employees or other contractors authorized by Licensee who have written and binding agreements with Licensee 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). "Change of Control" means the failure at any time of the current majority shareholders of the Licensee, to own, legally and beneficially, directly or indirectly, free of all liens, controlling shares of the Licensee and/or to appoint a majority of the directors of Licensee. "Confidential Information" has the meaning given in Section 7. "Customer" means a legal person who is a licensee or subscriber of the KNOX Solution for the purpose of direct distribution of the KNOX Solution to its authorized users at a corporate level. "Documentation" means any technical specifications or documentation that Samsung makes available or provides to Licensee relating to or for use in connection with the SDK. End User means any legal person or natural person who is authorized by the Customer to use the KNOX Solution. 2

3 "KNOX Solution" means a software program developed and owned by Samsung for the purpose of segregating personal and work area along with enhancement of the device security, including without limitation all bug fixes, enhancements, modifications, new releases, new versions, revisions, supplements, updates and upgrades. "Developer s License Key" means a license key issued to Licensee that allows an Application to Activate. A Developer s Development License Key means a type of License Key that is issued to Licensee for the limited purpose of software development of one or more Applications in accordance with this Agreement. B Developer s Commercial License Key is another type of License Key to be issued to Licensee for software commercialization of one or more Applications in accordance with this Agreement. "End User s License Key" means a license key to be purchased by Customer from Samsung or one of its authorized resellers to enable End User s use of KNOX Solution in their mobile devices. "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 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; and (h) the Apache License. "Party" means either Samsung or the Licensee and together, the "Parties". "Published API(s)" means the documented Application Programming Interface(s) contained in the SDK. "Sample Code" means the software marked as sample or delivered in a folder marked sample that Samsung includes as a part of the SDK. Sample Code may be in source code or object code format. "Samsung Device" means any and all devices manufactured by Samsung or its Affiliates. "Samsung Mobile Platform" means the mobile platform for KNOX Solution. "Samsung KNOX Quality Criteria" means the quality criteria of Samsung, as communicated to Licensee in writing (for which is sufficient), to ensure interoperability between Samsung Devices and KNOX Solution (including the Application). "Samsung Trade Marks" mean the trade names, trademarks, service marks, logos, domain names and other distinctive brand features of Samsung as owned by or licensed to Samsung and its Affiliates from time to time. 3

4 "SDK" means KNOX Premium SDK (previously known as Samsung MDM and Enterprise SDK), which includes the APIs designated for the Samsung Mobile Platform, applications, Documentation, data, files, libraries, materials, IDE (Integrated Development Environment), Sample Code, software (source code and object code), simulators and tools provided or made available to Licensee by Samsung pursuant to this Agreement for use in connection with the development of Applications, including any Updates that Samsung provides or makes available. For the purpose of clarity, SDK is Samsung s proprietary information and software which is considered neither as open source nor in the public domain. "Term" means the term of this Agreement as specified in Section 3. "Third Party Software" shall mean 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, or (b) any software placed in the public domain and accessible to anyone without any specific license terms attached thereto, or (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. (d) any software licensed under the Academic Free License, Apache Software License, the Artistic License (e.g., PERL); Berkeley Software Distribution License; Eclipse Public License; GNU s General Public License; GNU s Lesser/Library GPL; MIT License; the Mozilla Public License; the Python License, the Sleepy Cat license, the Sun Community Source License; or licenses approved by the Free Software Foundation or the Open Source Initiative. "Updates" means, in respect of the SDK or any part of the SDK, bug fixes, enhancements, modifications, new releases, new versions, supplements, updates or, upgrades. 4

5 2. Construction of Agreement (a) references to Licensee shall be construed as references to Licensee and if applicable to Affiliates of the Licensee; (b) references to statutory provisions shall be construed as references to those provisions as replaced, amended, modified or re-enacted from time to time; (c) words importing the singular include the plural and vice versa and words importing a gender include every gender; (d) references to Sections and the Exhibits are to sections of and the exhibits to this Agreement and references to this Agreement include the Exhibits; and (e) section headings are inserted for reference only and shall be ignored in construing this Agreement. 3. Term The term of this Agreement commences on the Effective Date and continues effective for one (1) year unless terminated earlier by either Licensee or Samsung in accordance with Section 11 ("Term"). Unless this Agreement is terminated pursuant to Section 11 or a Party sends the other Party a notice of termination sixty (60) days before the end of the Term (or the extension thereof), this Agreement shall be automatically renewed for additional one (1) year period. 4. Grant of SDK License and Restrictions 4.1 Subject to the provisions of this Agreement, Samsung hereby grants Licensee a limited, non-exclusive, personal, revocable (but only to the extent set forth in Section 11), non-sub licensable and non-transferable license during the Term to: (a) install a reasonable number of copies of the SDK on computers that Licensee owns or controls, for use internally by Licensee or Authorized Users solely for the purpose of developing, testing, and supporting the KNOX Solution and the Applications; (b) make a reasonable number of copies of the Documentation and distribute such copies to Licensee or Authorized Users for use internally only and solely for the purpose of developing, testing, and supporting the KNOX Solution and the Applications; (c) upon Samsung s making an End User s License Key available to Customer and either Samsung or Customer requesting Activation by Licensee, Activate the Application in order to carry out the activities authorized by Section 4.4; and (d) seek Samsung s prior written approval in case Licensee intends to use the SDK and/or the Documentation for the purpose other than stated above. 5

6 4.2 Licensee acknowledges and agrees that an Application must satisfy conditions and requirements as set out in this Agreement as well as Samsung KNOX Quality Criteria before it can be distributed for use on the relevant Samsung Device and Samsung reserves the right to reject any Application due to (i) the failure of such Application to meet Samsung KNOX Quality Criteria or (ii) any other causes reasonably determined by Samsung. Samsung s testing of an Application shall not be construed as Samsung s approval or acceptance on the Application on any aspect. Licensee also acknowledges and agrees that Samsung, at its sole discretion, may, upon Licensee s request, share with Licensee data collected during the aforementioned test in connection with the failed Application. 4.3 The development of Application shall be made in compliance with the Samsung KNOX Quality Criteria and any sales, distribution, rent, lease, license or sublicense of any Application shall not be made without the Application s full compliance with the Samsung KNOX Quality Criteria. 4.4 After Samsung makes a End User s License Key available to Customer and Licensee finalizes the Application and confirms it has applicable licenses in place with Customer, Licensee shall take all actions reasonably available to it to ensure that the Application is promptly Activated upon request from Samsung or Customers that have acquired a valid End User s License Key. Any Activation of an Application without a valid Developer s Commercial License Key or successful validation (to occur via a call from the Application to an API in the SDK) of the End User s License Key by Samsung license management agent shall be prohibited. 4.5 Upon Samsung s request, Licensee must train marketing and support personnel regarding the Application and provide documentation concerning use of the Application to Customers. 4.6 Upon execution of this Agreement, Samsung will issue a limited, non-exclusive, personal, revocable, non-licensable and non-transferable Developer s Development License Key for the sole purpose of developing one or more Applications by the Licensee. Subject to Licensee s compliance with this Agreement, and promptly following Licensee s request, Samsung will issue a limited, non-exclusive, personal, revocable, non-licensable and nontransferable Developer s Commercial License Key in accordance with the internal license management procedures as provided by Samsung from time to time for the sole purpose of commercializing one or more Applications by the Licensee. 4.7 Licensee acknowledges and agrees that the Licensee will use the Developer s Development License Key solely for the purposes of the development of Application, or testing, and support of the KNOX Solution. Licensee acknowledges and agrees that the Licensee will use the Developer s Commercial License Key solely for the purposes of the commercialization of Application and support of the KNOX Solution. Furthermore, the Licensee shall: (a) not share, distribute or otherwise disseminate the Developer s License Keys to any party other than the Licensee or its Authorized Users; 6

7 (b) not use the Developer s Development License Key on more than one hundred (100) devices at any one time and each device shall not make more than one hundred (100) API calls/minute; and (c) safeguard the Developer s License Keys and treat them with the same care given to other intellectual property of Licensee. 4.8 Licensee acknowledges that Samsung has the express rights to audit, track and otherwise count usage of Developer s License Keys issued to Licensee. Licensee acknowledges and agrees that the SDK sends automatic, periodic user anonymized usage reports to Samsung that identifies the (i) Developer s License Key, (ii) API called, (iii) device's unique identification number (IMEI or MAC address), (iv) carrier and model number and (v) other identifying information required to audit the use of the APIs. 4.9 Licensee must ensure that the Samsung Trade Marks and other proprietary notices that appear in the SDK and Documentation are retained and reproduced in full in all copies of the SDK and Documentation that Licensee makes as permitted under this Agreement Licensee must not sell, redistribute, rent, lease, lend or sublicense all or any part of the SDK, or enable or allow other parties to engage in such activities. Licensee must not use the SDK for any purpose that is not expressly permitted under this Agreement. Except as otherwise expressly set forth in Section 4.1(a) and except to the extent permitted by licensing terms in respect of Third Party Software components or Sample Code included with the SDK, Licensee must not copy (except as expressly permitted under this Agreement), modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the SDK or any part thereof, or enable or allow others to do such activities. The foregoing restrictions apply except as prohibited by applicable law and only to the extent of such prohibition Licensee must not exploit the SDK in any unauthorized way, including but not limited to, by way of trespass or burdening network capacity. Any attempt to do so constitutes a violation of the rights of Samsung in the SDK Licensee acknowledges that Licensee may be subject to prosecution and liable for damages if Licensee breaches any of the restrictions in this Agreement Except for the limited license granted to Licensee in this Agreement, all rights, title, and interest in and to the SDK and any Updates that are made available to Licensee under this Agreement remain, at all times, the sole and exclusive property of Samsung. Licensee agrees to cooperate with Samsung to maintain Samsung's ownership of the SDK, and Licensee agrees to promptly provide notice of any claims or threatened claims relating to the SDK. Apart from the license rights expressly set out in this Agreement, Samsung does not grant to Licensee and Licensee does 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 SDK, nor in any copy of any part of the foregoing, nor any other licenses, immunity or rights, express or implied Unless specifically agreed by Samsung under this Agreement or in a separate written agreement, nothing in this Agreement grants Licensee any right to use or alter any of 7

8 Samsung Trade Marks or other Samsung s intellectual property, which remain, at all times, the sole and exclusive property of Samsung Samsung may, at any time, extend, enhance, or otherwise modify the SDK. If Samsung makes any available Updates, such Updates will be governed by this Agreement (unless a separate license is provided with the Update, in which case the terms of that license shall govern the Update). Samsung will use its commercially reasonable effort to notify Licensee of, or announce, any Updates (for clarity, such notification or announcement includes, without limitation, a notice posted at Where an Update is made available, such Update may have APIs, features, services and/or functionality that are different from those found in the SDK licensed under this Agreement From time to time during the Term, Samsung may provide Licensee with test versions of the SDK. Licensee acknowledges and agrees that Licensee must not rely on such test versions to perform in the same manner as a final-release commercial-grade product and Licensee must not use such test versions with data that is not sufficiently backed up on a regular basis. 5. Conditions and Requirements Licensee acknowledges and agrees that the Applications must comply with the conditions and requirements set out below (or as modified by mutual written consent of Licensee and Samsung from time to time, with such consent not to be unreasonably withheld). 5.1 Licensee will comply with all applicable laws and regulations in connection with this Agreement. 5.2 If an Application captures, collects or records any form of user or device data, images, pictures or voice data (collectively "Recordings"), or processes, maintains, uploads, syncs, or transmits any form of user data, content or information (collectively "Transmissions"), such Recordings and Transmissions must comply with all applicable laws and regulations (including but not limited to privacy laws) as well as any Samsung s then-current internal policies as notified to Licensee (including but not limited to any notice or consent requirements).)). 5.3 Other than any claims and/or damages directly attributable to the SDK or Samsung Mobile Platform, Licensee will be solely responsible for any and all claims and/or damages arising from or related to the Application including, without limitation, installing or launching other executable code itself through the use of a plug-in architecture, calling other frameworks, other APIs or otherwise except as authorized by Samsung in writing in advance. Licensee 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 Application other than code that is interpreted and run by Samsung's Published APIs and built-in interpreters except as authorized otherwise by Samsung in advance in writing. 5.4 Applications must comply with all applicable laws and regulations (including the laws and regulations of any jurisdiction in which the Applications are offered or made available) and Samsung s then-current internal policies as notified to Licensee. Before Applications are available for any commercial use, Licensee shall obtain all required and necessary 8

9 permissions and/or approvals from relevant government authorities. In addition, in respect of any Application that uses location-based APIs or that collect, transmit, maintain, process, share, disclose or otherwise use personal information or location or other data relating to a user ("User Information Handling"), Licensee must comply, and the Application must be compliant, with all applicable privacy and data collection laws and regulations with respect to such User Information Handling. Licensee must not design or market Applications for the purpose of violating any legal rights of any person (including but not limited to privacy rights). 5.5 Applications that use location-based APIs provided by the SDK for real-time route guidance, MUST NOT BE USED FOR ANY EMERGENCY OR LIFE SAVING PURPOSES DUE TO ITS INACCURACY and Licensee must have an end user license agreement in relation to such Applications that includes the following notice: "REAL TIME LOCATION DATA ACCESSED VIA THIS APPLICATION MAY BE INACCURATE OR INCOMPLETE. LICENSEE S USE OF THIS APPLICATION IS AT ITS SOLE RISK." Licensee shall not use the Application for nuclear energy equipment, air traffic control, the operation of critical communication system, public transportation control, life support devices, or other ultra-hazardous uses where failure of the Application to perform would be reasonably expected to cause deaths, injuries or severe physical property or environmental losses. Any attempt to do so shall be deemed as a material breach under this Agreement. 5.6 Licensee shall not cause the portion of the SDK in Licensee s Application, any derivative works thereof, and/or Samsung s Confidential Information to be subject to the licensing terms applicable to Open Source Software (e.g., public disclosure, public distribution). If the SDK includes any Open Source Software, Samsung shall provide Licensee with information of all license terms applicable to such Open Source Software. 5.7 Applications may be rejected if they contain content or materials of any kind (including, but not limited to, text, graphics, images, photographs, sounds, etc.) that Samsung reasonably determines to be objectionable (for example, materials that may be considered obscene, pornographic or defamatory). 5.8 In order for Samsung to improve the Samsung Mobile Platform, Samsung may from time to time request Licensee to provide feedback regarding the use of policies and APIs in connection with Application and/or SDK and Licensee shall use its commercially reasonable efforts to promptly respond to such request. 5.9 Within six (6) months upon the receipt of Samsung KNOX Quality Criteria which may be provided by Samsung from time to time, Licensee shall (i) ensure that any and all Applications satisfy Samsung KNOX Quality Criteria and (ii) deliver all such Applications to Samsung for evaluation. Within 10 days after the end of each month, Licensee shall provide a written report to Samsung specifying any additional KNOX feature sets that have been made supported by each of its Applications. Samsung shall be entitled to terminate this Agreement, and all rights granted thereby at any time immediately upon written notice to Licensee if Licensee breaches any provision of this Section

10 6. Responsibilities of Parties 6.1 Licensee represents and warrants to Samsung and agrees that: (a) Licensee has the requisite corporate authority to enter into this Agreement and perform its obligations under this Agreement, and this Agreement does not conflict with any other agreement or obligation by which it is bound; (b) Licensee is and will be responsible for the Authorized Users use of the SDK and their compliance with this Agreement; (c) Licensee will be solely responsible for all activities Licensee and the Authorized Users undertake in connection with the SDK, the Applications and the development of Applications; and (d) Licensee will not create or enable others to create, whether by using the SDK or otherwise, any Application or other program that would disable, hack or otherwise interfere with any authentication, content protection, digital signing, digital rights management, security or verification mechanisms implemented in or by the SDK, or other Samsung software, services or technology provided in connection with this Agreement. (e) Licensee acknowledges that the Application and any related materials or information provided along with the Application may be subject to export control laws and regulations of the United States or any other countries, and Licensee agrees to comply with all applicable export statutes, rules and regulations of any governmental authority having jurisdiction and shall obtain all necessary permits, licenses and consents of governmental authorities necessary for the manufacture, sale, export, import or other performance contemplated by this Agreement. 6.2 Licensee shall implement an appropriate quality control program to ensure that the Application meets the Samsung KNOX Quality Criteria on a continuous and ongoing basis. Licensee shall exercise reasonable diligence to be aware of bugs or errors in the Application including by monitoring (i) customer inquiries and (ii) online forums. Licensee shall perform its own testing of the Application and shall keep written or electronic records of such testing during the term of this Agreement and for no less than two (2) years thereafter ( Test Records ). Upon Samsung s request, Licensee shall have five (5) business days to provide Samsung with reasonable access to the Test Records and the source and object code versions of the Application (either in pre-commercial release or commercial release version, as Samsung may reasonably request. 6.3 In the event that a Change of Control occurs, then the Licensee shall notify Samsung ninety (90) days prior to the effective date of Change of Control and Samsung may exercise its rights under Section 11.1(c). 6.4 Licensee shall inform Samsung of present and probable malfunctions, defects or safety problems with the Samsung Mobile Platform and shall provide reasonable cooperation at Samsung s request to further diagnose all such problems. 10

11 6.5 Licensee shall be responsible for any breach of this Agreement, or any action or omission, by its Affiliates as if such breach, action or omission were committed by Licensee. 6.6 Licensee shall provide documentation concerning use of the Application to the Customers. 6.7 Licensee shall provide End User a standard limited warranty with respect to commercial release versions of the Application in accordance with the Licensee s business practices. Licensee s end user license agreement and any warranty with respect to the Application must comply with applicable terms of this Agreement. 7. Confidentiality 7.1 Licensee acknowledges and agrees that any and all technical and non-technical information disclosed by one Party ( Disclosing Party ) to the other ( Receiving Party ) under this Agreement and related to the past, present or future business or technology of the Disclosing Party, including without limitation, information constituting or concerning research, development, processes and methodologies; product architecture, designs and specifications; software, whether human-readable or machine-readable; product, marketing, sales and business development plans and strategies; competitive analyses; financial analyses and forecasts; cost and pricing data; procurement requirements and vendor information; customers and prospects; licensing and distribution arrangements; third party information that the Disclosing Party is obligated to maintain in confidence; Developer s License Keys, and the SDK (including all test versions of the SDK) constitute "Confidential Information" for the purposes of this Agreement. Notwithstanding the foregoing, Confidential Information does not include: (i) information that is available to the public through no fault or breach by Licensee, (ii) information that Samsung makes generally made available to the public, (iii) information that Licensee independently develops without use of any Confidential Information, or (iv) information that Licensee lawfully obtains from a third party who had the right to transfer or disclose the information to Licensee without limitation,. 7.2 Licensee must protect Confidential Information using a degree of care that is no less than that which Licensee uses to protect Licensee s own confidential information of the same or similar importance (and in any event, no less than a reasonable degree of care). Licensee may use Confidential Information solely for the purpose of exercising Licensee s rights and performing Licensee s obligations under this Agreement and Licensee must not use Confidential Information for any other purpose, or for Licensee s own or any third party s benefit, without the prior written consent of Samsung. Licensee may disclose Confidential Information to the extent required by law, provided that Licensee takes reasonable steps to notify Samsung of the relevant requirement prior to disclosing the Confidential Information and Licensee takes reasonable steps to obtain protective treatment against disclosure of the Confidential Information. 7.3 Licensee must not issue any press releases or make any other public statements relating to this Agreement, its terms and conditions, or Licensee s relationship with Samsung without the express prior written approval of Samsung. 11

12 7.4 SHOULD ANY OF THE RECEIVING PARTY S EMPLOYEES, CONTRACTORS OR DISTRIBUTORS OR ANY PERSONS WORKING FOR OR ON BEHALF OF THE RECEIVING PARTY BREACH THE CONFIDENTIALITY RESTRICTIONS OR OBLIGATIONS UNDER THIS SECTION 7, THE RECEIVING PARTY SHALL BE RESPONSIBLE FOR AND INDEMNIFY AND PAY THE OTHER FOR ALL COSTS, FEES, AND DAMAGES OF THE DISCLOSING PARTY, INCLUDING ITS INDIRECT, SPECIAL AND CONSEQUENTIAL DAMAGES. 7.5 For the avoidance of doubt, this Section 7 shall survive any termination or expiry of this Agreement and expire five (5) years from the date of such termination or expiry of this Agreement. 8. DISCLAIMER OF WARRANTY 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 AND NON-INFRINGEMENT. FURTHER, SAMSUNG DOES NOT REPRESENT OR WARRANT THAT ANY PORTION OF THE SDK IS FREE OF INACCURACIES, ERRORS, BUGS OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. THE SDK IS PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT ANY WARRANTY OF ANY KIND FROM SAMSUNG. LICENSEE S USE OF THE SDK IS AT ITS OWN DISCRETION AND RISK, AND LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF THE SDK INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO LICENSEE S COMPUTER SYSTEM OR LOSS OF DATA. FOR THE PURPOSE OF CLARITY, THE SAMPLE CODE IS LICENSED AS-IS AND LICENSEE BEARS THE RISK OF USING IT. SAMSUNG GIVES NO EXPRESS AND/OR IMPLIED WARRANTIES, GUARANTEE OR CONDITIONS IN CONNECTION WITH THE SAMPLE CODE. 9. 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 LICENSEE OR ANY THIRD PARTY THROUGH LICENSEE FOR PERSONAL INJURY OR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, THE APPLICATION, LICENSEE S USE OF THE SDK, OR LICENSEE S DEVELOPMENT OF APPLICATIONS, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SAMSUNG HAS BEEN ADVISED OF THE POSSIBILITY OF 12

13 SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. LICENSEE S UNDERSTANDING, ACKNOWLEDGEMENT AND ACCEPTANCE OF THIS AGREEMENT ARE THE LEGAL BASIS AND CONSIDERATION FOR THE LICENSES GRANTED UNDER IT. 10. Indemnity 10.1 To the fullest extent permitted by law, Licensee agrees to indemnify, defend and hold harmless Samsung, its Affiliates, directors, officers, employees, independent contractors and agents (each an "Samsung Indemnified Party") from any and all claims, losses, liabilities, damages, expenses and costs (including without limitation reasonable attorney fees) (collectively "Losses") incurred by a Samsung Indemnified Party as a result of any third party claims that (a) the Applications violate or infringe any third party intellectual property or proprietary rights; (b) are otherwise related to or arising from any claims of Customers or End Users relating to the Application; or (c) arise from Licensee s breach of its obligations to comply with Section 5.6 with respect to Licensee s use of Open Source Software or other Third Party Software Where defense of a Claim is requested by the indemnified party, the indemnified party must notify the indemnifying party promptly in writing of any Claim, permit the indemnifying party to answer and defend the Claim through mutually acceptable counsel, and provide reasonable assistance, at the indemnifying party s expense, in defending the Claim. The indemnifying party must not enter into a settlement or like agreement with any third party that affects the other party s rights or binds the other party in any way to any obligation without the prior written consent of the indemnified party This Section shall survive expiration or termination of this Agreement. 11. Termination 11.1 Right to Terminate (a) Samsung may terminate this Agreement with immediate effect by written notice of termination, in case of a breach by the Licensee of the obligations arising out of this Agreement (as may be reasonably determined by Samsung), if such breach continues for thirty (30) days after Samsung s written notice to Licensee to remedy such breach, or in case of exceptional circumstances justifying early termination. (b) Any material violation by the Licensee of its contractual obligations is to be considered a material breach. Moreover, any failure by the Licensee to carry out all or part of its obligations under this Agreement materially depriving Samsung of what it is entitled to expect under this Agreement, shall be considered a material breach for the purpose of this Agreement. Any infringement by the Licensee of any Samsung Trade Mark shall constitute a material breach of this Agreement, which breach will give Samsung the right to terminate this Agreement with immediate effect by written notice of termination without any prior written notice or summons being required. (c) Unless provided by operation of compulsory law, the following situations shall be inter alia considered as exceptional circumstances which justify the early termination by Samsung: 13

14 bankruptcy, moratorium, receivership, liquidation or an application of the Licensee of any of these, or any kind of arrangement between debtor and creditors, attachment of goods or monies of the Licensor, Change of Control, ownership and/or management of the Licensee, material change of existing business and any other circumstances which are, in Samsung s opinion, likely to materially affect the Licensee s ability to carry out its obligations under this Agreement. (d) Samsung will have no liability to pay compensation or damages, or to provide an indemnity, of any kind as a result of terminating this Agreement in accordance with its terms, and termination of this Agreement is without prejudice to any other right or remedy that Samsung may have, now or at any time in the future Consequences of Termination Upon the termination of this Agreement: (a) all rights granted in this Agreement will terminate; (b) Licensee shall promptly stop using the SDK and return the SDK to Samsung or destroy all electronic copies of the SDK, (c) Licensee shall cease to distribute, transfer, license or activate the Application to a third party, and (d) Licensee ceases using in any way Samsung s name, the Samsung Trade Marks and any related materials and, at Samsung s request, provide written certification of such destruction to Samsung. Those rights and obligations of the Parties under this Agreement which expressly or by their nature would continue beyond the expiration or termination of this Agreement shall remain in effect and survive the expiration or any termination of this Agreement. All rights of Customers in Applications that are Activated and licensed to Customers during the Term will survive any expiration or termination of this Agreement. 12. General 12.1 Assignment Licensee may not assign the Agreement, in whole or in part, without Samsung s prior written consent, and any attempt to do so without such consent shall be void. Samsung may assign this Agreement without Licensee s 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 Licensee and Samsung This Agreement shall not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal relationship between Licensee and Samsung, and Licensee must not represent the existence of any such relationship, whether expressly, by implication or otherwise Third Party Rights This Agreement is not for the benefit of any third parties Development by Each Party. Nothing in this Agreement limits or otherwise affects either Party s right to independently acquire, develop, license, market, promote, or distribute any product or technology that performs the same or similar functions as the SDK or Applications or any other products or technologies that the other Party develops, markets, promotes or distributes, or that otherwise competes with the Applications or such products or technologies, subject to each party s intellectual property rights in its respective products, services and technologies. 14

15 12.5 Notices Any notices or other communication made pursuant to this Agreement must be in writing and will be deemed to have been fully given or made when: (a) personally delivered; (b) delivered via electronic mail as specified below or (c) three (3) days after being mailed via commercially reputable overnight delivery service, to the following address: Samsung Electronics Co., Ltd. KNOX Business Group 416, Maetan 3-dong, Yeongtong-gu, Suwon-si, Gyeonggi-do, , Korea Name: Akash Bhowmick Phone: Partner address listed above in registration. Licensee agrees to receive notices and other communications to be made to Licensee pursuant to this Agreement by and Licensee agrees that any notices that Samsung sends Licensee by will satisfy any legal communication requirements. A Party may change its or mailing address by giving the other Party written notice in accordance with this Section No Waiver Failure by a Party to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of such Party s rights as set forth 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 the other Party in the performance or compliance with any of the terms and conditions set forth in this Agreement Remedies Licensee acknowledges that any disclosure, use or misappropriation of Confidential Information of Samsung in violation of this Agreement would cause Samsung irreparable harm for which there may be no adequate remedy at law. Accordingly, Licensee agrees 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 Governing Law; Venue This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea, 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 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. 15

16 12.9 Entire Agreement This Agreement together with the NDA and the Input Agreement (each as defined herein) contains the entire agreement between the Parties with respect to the use of the SDK licensed hereunder and the Applications, and supersedes all existing agreements and all other oral, written or other communications between the Parties concerning this subject matter. The terms and conditions set forth in the Agreement govern Licensee s use of the SDK, notwithstanding any terms in any click-thru licenses, terms of use or other general terms that may be presented upon accessing or downloading the SDK or any related technology or materials. If any provision of this Agreement (or any portion thereof) is invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of this Agreement shall not be affected or impaired Electronic Signature The Parties may execute this Agreement in counterparts, each of which is deemed an original, but all of which together constitute one and the same agreement. This Agreement may be delivered by electronic mail communications in pdf format, and pdf copies of executed signature pages shall be binding as originals. Each Party to this Agreement agrees to use electronic signatures; and be subject to the provisions of the U.S. E- SIGN Act (i.e., the Electronic Signatures in Global and National Commerce Act (ESIGN, Pub.L , 14 Stat. 464, enacted June 30, 2000, 15 U.S.C. ch.96). This contract is tied to the registration by company from the person legally able to sign on behalf of the company this registration is acceptance of the terms of this contract. 16