Software License Subscription Agreement
July 1, 2020
This Software License Subscription Agreement (this “ Agreement”) is made and entered into as of the time and date at which you execute the click-through acceptance of its terms (the “ Effective Date”). This is a legal agreement between you and Samsung SDS America, Inc. (“SDSA”) that governs the use of the Software and its related Documentation. By clicking the “Accept” button or checking the “Accept” box when purchasing a license to the Software through the Samsung SDS America https://trial.xcelerator.ai website or during the installation process, or by downloading, installing, copying, or otherwise using the Software or Documentation, you agree to be bound by the terms of this Agreement. If you do not agree to the terms of this Agreement, do not download, install, copy, or use the Software or Documentation.
YOU REPRESENT THAT YOU ARE OF LEGAL AGE TO ENTER INTO AN AGREEMENT, AND, IF YOU ARE ENTERING INTO THIS Agreement ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THAT YOU HAVE THE LEGAL AUTHORITY TO BIND THAT ENTITY TO THIS Agreement, IN WHICH CASE “YOU” WILL MEAN THE ENTITY YOU REPRESENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT ACCEPT ALL OF THE TERMS AND CONDITIONS OF THIS Agreement, THEN SDSA DOES NOT AGREE TO LICENSE THE SOFTWARE TO YOU, AND YOU MAY NOT DOWNLOAD, INSTALL, COPY, OR USE IT.
1.1 Software License. Subject to your strict compliance with this Agreement, and on the basis of your representations and warranties (including those in Section 11.2 (By You)), SDSA hereby grants to you a non-exclusive, non-transferable, non-sublicensable, limited license for you to install, copy, and use the Software in an Amazon Web Services (“ AWS”) environment under your account during the License Term for your internal business purposes on servers that you own or control in the Territory, and in all cases provided that you do not exceed the License Metrics that are specified below in Section 1.2 (Metrics). Any copy of the Software made by you or on your behalf: (A) will remain the exclusive property of SDSA and its third-party licensors (as applicable); (B) be subject to the terms and conditions of this Agreement; and (C) must include all copyright and any other Intellectual Property Rights notices contained in the original.
1.2 Metrics. You may install, access, and use the Software on one (1) Kubernetes cluster, consisting of up to eight (8) graphics processing units (“GPUs”), and your license is limited to one (1) Authorized User (collectively, “ License Metrics”). An Authorized User may not share access credentials with any other Person, including another Authorized User.
1.3 Restrictions. Except as this Agreement expressly permits, and subject to Section 1.5 (Open Source Licenses) with respect to Open Source Components, you shall not, and you shall not permit any other Person to: (A) copy the Software or any Model, in whole or in part, or incorporate the Software, any Model, or any Third-Party Materials (except as otherwise permitted under an Open Source License) into any other software, or export any Model from the Software; (B) modify or otherwise prepare derivative works or improvements of the Software; (C) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make the Software or any Model available to any third party, including by acting as a consultant, service bureau, or application service provider, except as otherwise provided in a written amendment to this Agreement that has been signed by you and SDSA; (D) reverse engineer, disassemble, decompile, decode, or adapt the Software or any Model, or otherwise attempt to derive or gain access to the source code of the Software or any Model, in whole or in part; (E) bypass or breach any security device or protection (such as encryption) used for or contained in the Software, any Model, or Documentation; (F) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights, proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software, any Model, or the Documentation; (G) use the Software or any Model in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable Law; (H) use the Software or any Model for any purpose that is to SDSA’s detriment or commercial disadvantage, including to develop or use a competing software product or competitive analysis of the Software or Model; (I) assert any claim against SDSA or its Affiliates for the infringement of any patent or other Intellectual Property Rights; (J) use the Software, any Model, or the Documentation in any manner or for any purpose or application that violates any provision of this Agreement; or (K) use any Open Source Components in any manner or for any purpose or application that violates the terms of the controlling Open Source License.
1.4 License Term. The license term for all Software begins on the Effective Date and continues for the term specified in SDSA’s https://trial.xcelerator.ai website for the Software license that you have purchased (the “Initial Term”). Thereafter, the license term will automatically renew for successive one (1) year renewal terms unless and until either Party provides written notice of nonrenewal at least sixty (60) days before the end of the then-current term, or unless and until earlier terminated as provided under this Agreement (each, a “ Renewal Term”, and together with the Initial Term and other Renewal Terms, the “License Term”). You may not terminate your license prior to the end of the License Term.
1.5 Open Source Licenses. Any use of the Open Source Components is exclusively governed by the open source licenses set forth in the read-me file accompanying the Software and online at https://www.samsungsds.com/ , as they may be relocated to a new URL by SDSA (each, an “ Open Source License”).
1.6 Evaluation License. If you are being provided with an unpaid license to evaluate the Software, including a beta version or production version of the Software (a “ Free Trial License”), SDSA hereby grants to you a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to install, execute, and run the Software on servers that you own or control in the Territory for a period of fifteen (15) days from the date on which you order a Free Trial License through the https://trial.xcelerator.ai website (“Trial Period”). Your Free Trial License is limited to installation and use of the Software on one (1) Kubernetes cluster consisting of any number of GPUs by up to sixteen (16) Authorized Users. There are no limits on the number of times you may train a Model; provided, however, that at the end of the Trial Period, all of Your Content and any Models that you trained using the Software during the Trial Period (each, an “ Evaluation Model”) will be permanently destroyed and may not be removed, copied, or used outside of the Software. You have no right, title, or interest in or to any Evaluation Model. SDSA has no obligation under this Agreement to provide any maintenance, support, or other services relating to any Free Trial License, and SDSA has no obligation to make any beta or other pre-production version of the Software commercially available. Subject to your strict compliance with this Agreement, and on the basis of your representations and warranties (including those in Section 11.2 (By You)),you may elect to convert your Free Trial License into a paid license for the Software effective at the end of the Trial Period. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FREE TRIAL LICENSES ARE PROVIDED “AS IS”, AND SDSA AND ITS LICENSORS HEREBY EXRESSLY DISCLAIM ALL EXPRESS, IMPLIED, AND OTHER WARRRANTIES WITH RESPECT TO THE SOFTWARE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SDSA WILL HAVE NO LIABILITY ARISING FROM OR RELATING TO ANY FREE TRIAL LICENSE, AND YOU WILL NOT BE ENTITLED TO INDEMNIFICATION BY SDSA IN CONNECTION WITH ANY FREE TRIAL LICENSE.
2.3 Your Content. You retain all right, title, and interest in and to your own information and data that is processed by the Software or supplied to SDSA (“Your Content”) and any predictive Models generated as a result of using the Software to process Your Content. All Models provided to you will be encrypted and you shall not remove the Models from the Software or violate any of the restrictions in Section 1.3 (Restrictions) with respect to any Model. You may export Models only if you agree to additional terms and conditions and pay any applicable fees. You hereby grant to SDSA a non-exclusive, worldwide, perpetual, royalty free, fully paid, sublicensable, transferrable, license to use Your Content to improve or maintain the Software, provide Support and Maintenance, or develop new offerings. SDSA and its licensors retain all rights, title, and interest in and to all Software used to create any Model. You are solely responsible for taking appropriate measures to back up your system and data, including Usage Data and Your Content, and all other necessary measures to prevent any file or data corruption or loss, including the use of a properly segregated testing environment.
3. Delivery. SDSA shall deliver one copy of the Software electronically, on tangible media, or by other means, in each case in SDSA’s sole discretion. SDSA may, in its sole discretion, condition provision of the license key to the Software upon your prior payment in full of any applicable license fees.
4. New Releases. During the License Term, SDSA may provide you with New Releases (including updated Documentation) that SDSA may, in its sole discretion, make generally available to its licensees at no additional charge. Any New Release that SDSA provides to you is deemed to be Software. You are entitled to any New Release that is issued during the License Term, subject to your consent to any license terms that specifically apply to the New Release. You must install any New Release within ninety (90) days after it is made available by SDSA.
5. Professional Services. You may order professional services that will be provided by SDSA under a statement of work signed by both parties, which may include enhanced installation, configuration, training, and other consulting services relating to the Software (collectively, “ Professional Services”). Professional Services will be subject to the additional terms and conditions set forth in a services schedule, a copy of which will be provided to you together with the applicable statement of work.
6. Support and Maintenance. SDSA shall provide the support and maintenance services described in the Support and Maintenance Policy for the Software during the License Term, but SDSA is not obligated to provide any Support and Maintenance for any Evaluation License.
7. Fees and Payment.
7.1 License Fees. You shall pay SDSA the license fees specified in SDSA’s https://trial.xcelerator.ai website for the license to the Software that you have purchased in accordance with the terms of this Section 7 (Fees and Payment).
7.2 Taxes. All fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, you are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by you under this Agreement, other than any taxes imposed on SDSA’s income.
7.3 Payment. Fees are due and payable in full on the Effective Date prior to the commencement of the License Term. You shall make all payments under this Agreement in U.S. dollars. All payments are non-refundable.
7.4 Late Payment. If you fail to make any payment when due, then, in addition to all other remedies that may be available to SDSA : (A) SDSA may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law; (B) you shall reimburse SDSA for all costs incurred by SDSA in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs, and collection agency fees; and (C) if such failure continues for ten (10) days following written notice thereof, SDSA may (i) disable your use of the Software or any Model (including by means of a disabling code, technology or device); (ii) withhold, suspend or revoke its grant of a license under this Agreement; and (iii) terminate this Agreement.
8. Audits . You shall create, retain, and provide to SDSA or its designated auditor all books, records, equipment, Usage Data, logs, and other information required for SDSA or its designated auditor to verify your use of the Software and Documentation in accordance with this Agreement. SDSA or its designated auditor may, in SDSA’s sole discretion and on twenty-four (24) hours’ notice, inspect and audit your use of the Software at all locations and in all networks or computing environments at any time during the License Term and for a period of one (1) year following the expiration or earlier termination of this Agreement. You shall cooperate with any effort by SDSA or its auditor as may be requested by or on behalf of SDSA with respect to such audit. If the audit determines that your use of the Software exceeded the usage permitted by this Agreement, you shall pay to SDSA all amounts due for such excess use of the Software, at SDSA’s standard pricing (without any discounts), plus interest on such amounts calculated at the rate specified in Section 7.4 (Late Payment) beginning as of the date on which the excess usage occurred. If the audit determines that such excess use equals or exceeds your permitted level of use, you shall also pay to SDSA all costs incurred by SDSA in conducting the audit. You shall make all payments required under this Section 8 (Audits) within thirty (30) days of the date of written notification of the audit results.
9.1 Confidential Information. In connection with this Agreement, each Party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other Party (as the “Receiving Party”). Subject to Section 9.2 (Exclusions), “ Confidential Information” means information in any form or medium (whether oral, written, electronic or other) that: (A) if disclosed in writing or other tangible form or medium, is marked “confidential” or “proprietary”; (B) if disclosed orally or in other intangible form or medium, is identified by the Disclosing Party or its Representative as confidential or proprietary when disclosed and summarized and marked “confidential” or “proprietary” in writing by the Disclosing Party or its Representative within ten (10) days after disclosure; or (C) due to the nature of its subject matter or the circumstances surrounding its disclosure, would reasonably be understood to be confidential or proprietary. The following information will be considered Confidential Information whether or not marked or identified as such: the Software, Documentation, all Models, Usage Data, performance reports, performance benchmarks, GPU scheduling information on Kubernetes, know-how, AutoML suite and feature generation, AutoDL suite, and transferred learning.
9.2 Exclusions. Confidential Information does not include information that: (A) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (B) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (C) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; (D) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information, as demonstrated by written or other documentary records; or (E) Personal Information.
9.3 Protection. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall: (A) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (B) except as may be permitted under the terms and conditions of Section 9.4 (Compelled Disclosures), not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 9 (Confidentiality); and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 9 (Confidentiality); (C) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and (D) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 9 (Confidentiality). Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 9 (Confidentiality) with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
9.4 Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information, then, to the extent permitted by applicable Law, the Receiving Party shall: (A) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 9.3 (Protection); and (B) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 9.4 (Compelled Disclosures), the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
10. Intellectual Property Rights.
10.1 Ownership. You acknowledge and agree that: (A) the Software, Documentation, and any predictive algorithms provided to you by SDSA are licensed, not sold, to you by SDSA and third-party licensors, and this Agreement does not give you any ownership interest in any Software or Documentation, or in any related Intellectual Property Rights; (B) SDSA and its licensors are the sole and exclusive owners of all right, title, and interest in and to the Software, Documentation, and any predictive algorithms provided to you by SDSA, including all related Intellectual Property Rights, except for the rights of third parties in Open Source Components and the limited license granted to you under this Agreement; and (C) except as provided in Section 2.3 (Your Content), you hereby unconditionally and irrevocably assign to SDSA your entire right, title, and interest in and to any Intellectual Property Rights that you have now or may have in the future in or relating to the Software or Documentation. This assignment obligation applies to any rights in derivative works or patent improvements relating to the Software or Documentation, whether held or acquired by operation of Law, contract, assignment, or otherwise.
10.2 Cooperation. You shall, during the License Term: (A) safeguard the Software, any Model, and the Documentation (including all copies) from infringement, misappropriation, theft, misuse, and unauthorized access; (B) take all steps that SDSA may reasonably require you to take in order to assist SDSA in maintaining the validity, enforceability, and SDSA’s ownership of the Intellectual Property Rights in the Software and Documentation; (C) promptly notify SDSA in writing if you become aware of: (i) any actual or suspected infringement, misappropriation or other violation of SDSA’s Intellectual Property Rights in or relating to the Software or any Documentation; or (ii) any claim that the Software, any Model, or any Documentation, including any production, use, marketing, sale, or other disposition of the Software, any Model, or any Documentation, in whole or in part, infringes, misappropriates or otherwise violates the Intellectual Property Rights or other rights of any Person; and (D) fully cooperate with and assist SDSA in all reasonable ways in the conduct of any Action that SDSA may bring to prevent or abate any actual or threatened infringement, misappropriation or violation of our rights in, and to attempt to resolve any Actions relating to, the Software, any Model, or any Documentation.
10.3 No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to you or any third party any right, title, or interest in or to the Software, Documentation, or any other information, data, code, or materials.
11. Representations and Warranties.
11.1 Mutual Representations and Warranties. Each Party represents, warrants, and covenants to the other Party that: (A) it is duly organized, validly existing and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization; and (B) it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, and authorizations it grants and is required to grant under this Agreement.
11.2 By You. You represent, warrant, and covenant to SDSA that: (A) Your Content does not infringe upon the Intellectual Property Rights of any third party; (B) the use or combination of Your Content with any software (including the Software), hardware, information, services, data, or materials will not infringe upon the Intellectual Property Rights of any third party; (C) Your Content does not contain any Personal Information; (D) if you are a company or other entity, the execution of this Agreement by your representative has been duly authorized by all necessary corporate or organizational action; and (E) this Agreement will constitute the legal, valid, and binding obligation of, and be enforceable against you in accordance with its terms.
11.3 Limited Software Warranty. Subject to the limitations and conditions set forth in this Section 11.3 (Limited Software Warranty), Section 11.4 (Services Warranty), and Section 11.5 (Disclaimer of Warranties), SDSA warrants that during the License Term the unmodified Software when installed, operated, and used as recommended in the Documentation and in accordance with this Agreement will function in substantial conformity with the Documentation (“ Software Warranty”). This Software Warranty does not apply to any Software that: (A) has been altered by any Person other than SDSA, (B) has not been installed, operated, repaired, or maintained in accordance with the Documentation, (C) has been subjected to misuse, negligence, abuse, or accident; (D) is licensed for beta, evaluation, testing or demonstration purposes, including any Software licensed to you under a Free Trial License; or (E) use of the Software in excess of the purchased entitlements. If you believe that SDSA has breached this Software Warranty, then you must notify SDSA of the breach within thirty (30) days after the day on which the breach first occurred and SDSA will use commercially reasonable efforts to correct the Software. If SDSA is unable to correct the Software within a reasonable period of time after you provide notice of the breach, you will be entitled to terminate the license to the applicable Software and receive a pro-rated refund of any fees based on the number of days remaining in the License Term. The remedy stated in this Section 11.3 (Limited Software Warranty) is your sole and exclusive remedy for any breach of the Services Warranty.
11.4 Services Warranty. All Support and Maintenance and Professional Services will be performed in a professional and workmanlike manner and in accordance with industry standards for similar services (“Services Warranty”). If you believe that SDSA has breached this Services Warranty, then you must notify SDSA of the breach within thirty (30) days after the day on which the breach first occurred and SDSA will use commercially reasonable efforts to correct or re-perform such services. The remedy stated in this Section 11.4 (Services Warranty) is your sole and exclusive remedy for any breach of the Services Warranty.
11.5 DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTIES SET FORTH IN SECTIONS 11.3 (LIMITED SOFTWARE WARRANTY) AND 11.4 (SERVICES WARRANTY), ALL SOFTWARE, DOCUMENTATION, SERVICES, PRODUCTS, AND OTHER MATERIALS PROVIDED BY SDSA UNDER OR IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS IS,” AND SDSA AND ITS LICENSORS, SUPPLIERS, AND SERVICE PROVIDERS (AS APPLICABLE) SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING DISCLAIMERS, SDSA MAKES NO WARRANTY OF ANY KIND THAT ANY SOFTWARE, DOCUMENTATION, SERVICES, PRODUCTS, OR OTHER MATERIALS PROVIDED UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR THE RESULTS OF ANY USE OF THE SOFTWARE OR DOCUMENTATION, WILL: (A) MEET YOUR OR ANY OTHER PERSONS’ REQUIREMENTS, (B) OPERATE WITHOUT INTERRUPTION, (C) ACHIEVE ANY INTENDED RESULT, (D) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR (E) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL OPEN SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN YOU AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF SUCH OPEN SOURCE COMPONENTS AND THIRD-PARTY MATERIALS. SDSA DISCLAIMS ANY RESPONSIBILITY FOR ANY LOSS OF ANY OF YOUR CONTENT AND IS NOT RESPONSIBLE FOR THE BACKUP OF ANY OF YOUR CONTENT.
12.1 By SDSA. SDSA shall defend you, your Affiliates, and your officers, directors, employees, agents, permitted successors and permitted assigns (each, a “Licensee Indemnitee”) against any Action brought by a third party against the Licensee Indemnitee alleging that the Software or any Documentation infringes or misappropriates any third-party Intellectual Property Right or other right of a third party, and SDSA shall indemnify and hold the Licensee Indemnitee harmless from and against any and all Losses finally awarded against the Licensee Indemnitee in a final judgment by a court of competent jurisdiction for the Action. This Section 12.1 (By SDSA) does not apply to the extent that the alleged infringement arises from any: (A) Open Source Components or other Third-Party Materials; (B) use of the Software in violation of this Agreement or the Documentation; (C) combination or use of the Software with any technology (including any software, hardware, firmware, system, or network) or service not provided by SDSA; (D) modification of the Software by anyone other than SDSA; (E) use of any version of the Software other than the most current version or failure to timely implement any New Release; (F) negligence, abuse, misapplication, or misuse of the Software or Documentation; or (G) third-party Claims or Losses for which you are obligated to indemnify SDSA pursuant to Section 12.2 (By You).
12.2 By You. You shall defend SDSA, SDSA’s Affiliates, and their respective officers, directors, employees, agents, permitted successors and permitted assigns (each, a “SDSA Indemnitee”) against any Action brought by a third party against the SDSA Indemnitee, and defend and hold the SDSA Indemnitee harmless from any Losses finally awarded by a court of competent jurisdiction against the SDSA Indemnitee resulting from any Action brought by a third party against a SDSA Indemnitee: (A) alleging that any Intellectual Property Rights or other right of any Person, or any Law, is or will be infringed, misappropriated, or otherwise violated by any (i) use or combination of the Software by you or any of your Representatives or on your behalf with any hardware, software, system, network, service, or other matter whatsoever that is neither provided by SDSA nor authorized by SDSA in this Agreement and the Documentation; or (ii) information, materials, or technology directly or indirectly provided by you or directed by you to be installed, combined, integrated, or used with, as part of, or in connection with the Software or Documentation, including Your Content; (B) relating to facts that, if true, would constitute your breach of any representation, warranty, covenant, or obligation under this Agreement; (C) relating to negligence, abuse, misapplication, misuse or more culpable act or omission (including recklessness or willful misconduct) by you or any of your Representatives or on your behalf with respect to the Software or Documentation or otherwise in connection with this Agreement; (D) relating to use of the Software, Documentation, or any Model in connection with the design, construction, maintenance, or operation of any hazardous environment, system, or application, including any use or application where a failure of the Software or any Model to operate as intended could lead to environmental harm, personal injury, or severe physical or property damage; (E) relating to use of the Software or Documentation by you or any of your Representatives or on your behalf that is outside the purpose, scope or manner of use authorized by this Agreement or the Documentation, or in any manner contrary to SDSA’s instructions; or (F) relating to or in connection with Your Content or your breach of Section 2.3 (Your Content) or Section 11.2 (By You).
12.3 Indemnification Procedure. Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to Section 12.1 (By SDSA) or Section 12.2 (By You). The Party seeking indemnification (the “Indemnitee”) shall cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and investigation of such Action and shall employ counsel reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action on any terms or in any manner that adversely affects the rights of any Indemnitee without the Indemnitee’s prior written consent, which may not be unreasonably withheld or delayed. If the Indemnitor fails or refuses to assume control of the defense of such Action, the Indemnitee shall have the right, but no obligation, to defend against such Action, including settling such Action after giving notice to the Indemnitor, in each case in such manner and on such terms as the Indemnitee may deem appropriate. The Indemnitee’s failure to perform any obligations under this Section 12.3 (Indemnification Procedure) will not relieve the Indemnitor of its obligations under Section 12 (Indemnification), except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
12.4 Mitigation. If the Software, or any part of the Software, is, or in SDSA’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if your use of the Software is enjoined or threatened to be enjoined, SDSA may, at its option and sole cost and expense: (A) obtain the right for you to continue to using the Software materially as contemplated by this Agreement; (B) modify or replace the Software, in whole or in part, to seek to make the Software non-infringing, while providing materially equivalent features and functionality, and such modified or replacement software will constitute Software under this Agreement; or (C) terminate this Agreement, in its entirety or with respect to the affected part or feature of the Software, effective immediately on written notice to you, in which event: (i) you shall cease all use of the Software and Documentation immediately on receipt of SDSA’s notice; and (ii) provided that you fully comply with your post-termination obligations set forth in Section 14.2 (Effect of Termination or Expiration), SDSA shall promptly refund to you, on a pro rata basis, the share of any license fees prepaid by you for the future portion of the License Term that would have remained but for such termination.
12.5 Sole Remedy. THIS SECTION 12 (Indemnification) SETS FORTH YOUR SOLE REMEDIES AND SDSA’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
13. Limitations of Liability.
13.1 EXCLUSION OF DAMAGES. IN NO EVENT WILL SDSA, OR ANY OF ITS SERVICE PROVIDERS OR SUPPLIERS, BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (A) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (B) LOSS OF GOODWILL OR REPUTATION, (C) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY LICENSED SOFTWARE OR OPEN SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS, (D) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, (E) COST OF REPLACEMENT GOODS OR SERVICES, (F) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, (G) UNAVAILABILITY OR NON-PERFORMANCE OF ANY OR ALL OF THE SERVICES OFFERED BY AWS, (H) INVESTMENTS, EXPENDITURES OR COMMITMENTS RELATED TO USE OR ACCESS TO THE SERVICES OFFERED BY AWS, OR (I) BREACH OF DATA OR SYSTEM SECURITY, INCLUDING ANY UNAUTHORIZED ACCESS TO, COMPROMISE, ALTERATION, OR LOSS OF YOUR CONTENT, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13.2 CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF SDSA AND ITS SUPPLIERS AND SERVICE PROVIDERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNTS PAID TO SDSA UNDER THIS AGREEMENT DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
13.3 Exceptions. The exclusions and limitations in Section 13.1 (Exclusion of Damages) and Section 13.2 (Cap on Monetary Liability) do not apply to: (A) the extent prohibited by applicable Law, or(B) a breach of Section 9 (Confidentiality).
14.1 Either Party may terminate this Agreement effective immediately upon notice to the other Party, if the other Party: (A) is dissolved or liquidated or takes any corporate or other action for such purpose; (B) becomes insolvent or is generally unable to pay its debts as they become due; (C) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any domestic or foreign bankruptcy or insolvency Law; (D) makes or seeks to make a general assignment for the benefit of its creditors; (E) applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property; or (F) materially breaches this Agreement and fails to cure that breach within thirty (30) days after its receipt of notice of the breach from the non-breaching Party, except that SDSA may terminate this Agreement and any license effective immediately upon any breach of Section 1.3 (Restrictions).
14.2 Effect of Termination or Expiration. On the expiration or earlier termination of this Agreement, all rights, licenses and authorizations granted to you under this Agreement will immediately terminate, and you agree to: (A) immediately cease all use of and other activities with respect to the Software, any Models, and Documentation; (B) within twenty-four (24) hours after the termination or completion of an audit, if notice of the audit was given prior the termination, deliver to SDSA, or at SDSA’s written request destroy, and permanently erase from all devices and systems that you directly or indirectly control, the Software, any Models, the Documentation and SDSA’s Confidential Information, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (C) certify to SDSA in a signed written instrument that it has complied with the requirements of this Section 14.2 (Effect of Termination or Expiration). The provisions set forth in the following sections, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Sections 1.3 (Restrictions), 2.1 (Account Information), 2.2 (Usage Data), 7 (Fees and Payment), 8 (Audits), 9 (Confidentiality), 10 (Intellectual Property Rights), 11.5 (Disclaimer of Warranties), 12.2 (By You), 13 (Limitation of Liability), 14.2 (Effect of Termination or Expiration), and 15 (Miscellaneous).
15.1 Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party will have authority to contract for or bind the other Party in any manner whatsoever.
15.2 Public Announcements. Neither Party may issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association or sponsorship, in each case, without the prior written consent of the other Party, which may not be unreasonably delayed or withheld; provided, however, that SDSA may, without your consent, include your name and other indicia in its lists of SDSA’s current or former customers in promotional and marketing materials.
15.3 Notices. To be valid, any notice under this Agreement must be in writing and properly addressed, and the Party providing notice must use one of the following methods of delivery: (A) personal delivery, with a signed delivery receipt; (B) certified mail, return receipt requested, with all postage prepaid; or(C) nationally recognized overnight courier ( e.g., FedEx or UPS), with a signature required upon delivery and all fees prepaid. In addition, SDSA may also notify you by email. A notice is properly addressed if it is sent to a party at the address provided below or to another address specified by a Party in a notice sent in accordance with this Section 15.3 (Notices). Notices are effective upon receipt. A notice is deemed to be received upon actual delivery, as indicated in the signed delivery receipt, except if the notice is received on any day other than a Business Day, or after 5:00 p.m. at the recipient’s location, then the notice will be deemed to be effective on the following Business Day. Any notice that is rejected or cannot be delivered because of a change of address for which notice was not provided, notice will be deemed to be received upon the rejection or failed delivery. Any notice sent to SDSA must be addressed to SDSA as follows: Samsung SDS America, Inc., 100 Challenger Road, 6th Floor, Ridgefield Park, New Jersey 07660, Attn.: General Counsel with a copy to Samsung SDS America, Inc., 3655 North First Street, San Jose, California 95134, Attn.: VP, Open Innovation Team. Any notice sent to you must be sent to the physical or electronic mail address you provided to SDSA when purchasing your Software license.
15.4 Interpretation. For purposes of this Agreement: (A) the words “include,” “includes” and “including” are deemed to be followed by the words “without limitation”; (B) the word “or” is not exclusive; (C) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (D) words denoting the singular have a comparable meaning when used in the plural, and vice versa; and (E) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, policies, and appendices mean the sections of, and exhibits, schedules, attachments, policies, and appendices to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
15.5 Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
15.6 Entire Agreement. This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the related exhibits, schedules, attachments, policies, and appendices and any other documents incorporated herein by reference, the following order of precedence governs: (A) first, this Agreement, excluding its exhibits, schedules, attachments, policies, and appendices; (B) second, the exhibits, schedules, attachments, policies, and appendices to this Agreement; and (C) third, any other documents incorporated herein by reference.
15.7 Assignment. You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of your obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without SDSA’s prior written consent. No assignment, delegation, or transfer will relieve you of any of your obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 15.7 is void. This Agreement is binding on and inures to the benefit of the Parties hereto and their respective successors and permitted assigns.
15.8 Export Regulation. The Software may be subject to U.S. export control laws, including the U.S. Export Control Reform Act and its associated regulations. You will not directly or indirectly, export, re-export, or release the Software to, or make the Software accessible from, any country, jurisdiction or Person to which export, re-export, or release is prohibited by applicable Law. You shall comply with all applicable Laws and complete all required undertakings (including obtaining any necessary export license or other governmental approval) prior to exporting, re-exporting, releasing, or otherwise making the Software available outside the U.S.
15.9 U.S. Government Rights. Each of the Documentation and the software components that constitute the Software is a “commercial item” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212. Accordingly, if you are an agency of the US Government or any contractor therefor, you only receive those rights with respect to the Software and Documentation as are granted to all other end users under license, in accordance with (A) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (B) 48 C.F.R. §12.212, with respect to all other US Government licensees and their contractors.
15.10 Force Majeure.
(a) No Breach or Default. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments) when and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control (a “ Force Majeure Event”), including acts of God, pandemics, epidemics, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation.
(b) Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected Party will give prompt written notice to you stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
15.11 No Third-Party Beneficiaries. Except for Indemnitees, this Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
15.13 Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. On such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
15.14 Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in the city of San Jose and County of Santa Clara, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
15.15 Waiver of Jury Trial. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
15.16 Equitable Relief. You acknowledge and agree that a breach or threatened breach by you of any of your obligations under this Agreement would cause SDSA irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, SDSA will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
16. Definitions. Certain capitalized terms, if not otherwise defined elsewhere in this Agreement, shall have the meanings set forth below:
“Account Information” means means any data or information concerning you, including your use of any services offered by AWS with the Software and any information you provide to SDSA with respect to any transaction to purchase a license to the Software.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract, or otherwise.
“Authorized User” means a specific named individual who is working for your organization, either as an employee or contractor, and who is authorized by you to use the Software for your internal business purposes.
“Business Day” means a day other than a Saturday, Sunday, or other day on which commercial banks in New York City are authorized or required by Law to be closed for business.
“Documentation” means SDSA’s user manuals, handbooks, and installation guides relating to the Software and any other end user documentation relating to the Software located in the network file storage configured by the Software on you system, or any other information that SDSA provides or makes available to you in any form or medium which describe the functionality, components, features, or requirements of the Software, including any aspect of the installation, configuration, integration, operation, or use of the Software.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights Laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification under this Agreement and pursuing any insurance providers.
“Model” means the output generated as a result of using the Software to process training data with a predictive machine learning algorithm. For clarity, the predictive algorithm is not part of the Model.
“New Release” means any generally available version of the Software that introduces any new features, functionalities, enhancements, bug fixes, patches, or other updates, excluding any optional feature packages or add-ons that SDSA may, in its sole discretion, license separately.
“Open Source Components” means any software component that is subject to any open source license agreement, including any software available in the about box of the Software or online at https://www.samsungsds.com, as amended or relocated by SDSA from time to time.
“Party” means a party to this Agreement.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Personal Information” means any data that identifies, or can be used either alone or in combination with any other data to identify, any individual or entity, including personal data (as defined in the EU General Data Protection Regulation (EU 2016/679)), personal information (as defined in the California Consumer Privacy Act of 2018), cardholder data (as defined in the Payment Card Industry Data Security Standard), nonpublic personal information (as defined in the Gramm-Leach-Bliley Act), Protected Health Information (as defined in the Health Insurance Portability and Accountability Act, as amended by the Health Information Technology for Economic and Clinical Health Act), or any other sensitive financial, healthcare, genetic, or other information that is subject to any data privacy or security Laws or regulations.
“Representatives” means, with respect to a Party, such Party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors, and legal advisors.
“Software” means the executable, object code version of the Software, and any New Releases provided to you pursuant to this Agreement.
“Support and Maintenance Policy” means the Support and Maintenance Policy available online at https://www.samsungsds.com, as it may be moved to another URL or amended by SDSA from time to time.
“Territory” means the United States.
“Third-Party Materials” means materials and information, in any form or medium, that are not proprietary to SDSA, including any third-party: (A) documents, data, content or specifications; (B) Open Source Components or other software, hardware or other products, facilities, equipment or devices; and (C) accessories, components, parts or features of any of the foregoing.