SAMSUNG NEW HEALTH PARTNER SERVICE & SDK LICENSE AGREEMENT AND ITS APPENDICES

READ CAREFULLY BEFORE AGREEING TO THIS SAMSUNG NEW HEALTH PARTNER SERVICE & SDK LICENSE AGREEMENT AND ITS APPENDICES ("AGREEMENT"): THIS AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU ("PROVIDER" OR "LICENSEE") AND SAMSUNG ELECTRONICS CO., LTD. ("SAMSUNG") AND IS MADE EFFECTIVE ON THE DATE YOU CLICK ON THE "AGREE" BUTTON ("EFFECTIVE DATE"). PROVIDER AND SAMSUNG MAY BE REFERRED TO AS, EACH A "PARTY", OR COLLECTIVELY "PARTIES". BY CLICKING ON THE "AGREE" BUTTON, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY OR HAVE BEEN PROVIDED THE AUTHORITY TO BIND THE PROVIDER TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT FURTHER USE THE SDK AND DO NOT CLICK ON THE "AGREE" BUTTON. IN GOOD AND VALUABLE CONSIDERATION, RECEIPT OF WHICH IS HEREBY ACKNOWLEDGED, THE PARTIES HERETO AGREE AS FOLLOWS:

UPDATED ON October 7, 2021

1. DEFINITIONS & INTERPRETATION.

1.1.

In this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:

"Affiliate" shall mean any entity controlling, controlled by or under common control with a party hereto, where ‘control’ means the direct or indirect ownership of more than fifty percent (50%) of such entity's capital or equivalent voting rights.

"Appendix" means a document attached to this Agreement, which from time to time may be amended or supplemented by Samsung. The Appendix is incorporated by reference herein, and is made a part of this Agreement.

"Applicable Law" means any applicable constitution, treaty, statute, rule, regulation, sanctions, ordinance, order, directive, code, interpretation, judgment, decree, injunction, writ, determination, award, permit, license, authorization, requirement or decision of or agreement with or by any legislative, administrative, judicial or other governmental authority, including without limitation any laws and regulations regarding data protection, privacy, and security.

"Data Security Breach" means, in connection with the Service, (i) the loss or misuse (by any means) of User Data; (ii) the inadvertent, unauthorized, and/or unlawful processing, disclosure, access, alteration, corruption, transfer, sale, rental, destruction, or use of User Data; or (iii) any other act or omission that compromises or may compromise the security, confidentiality, or integrity of User Data.

"Intellectual Property Rights" means any patents, copyright, design right, trademark, service mark, logo, database right, trade secret, patent applications, rights in inventions, know-how and/or other present or future intellectual property right of any type.

"Processing" (including its cognate, "Process") means any operation or set of operations that is performed upon User Data, whether or not by automatic means, including but not limited to, collection, recording, organization, storage, access, adaptation, alteration, retrieval, consultation, use, disclosure, dissemination, making available, alignment, combination, blocking, deleting, erasure, or destruction.

"Samsung Platform" means the Samsung service and/or platform interface including without limitation the "Samsung Health".

"Samsung Device" means any electronic devices which are manufactured, developed by or for Samsung or its Affiliates including without limitation, Samsung smartphones, tablets, IoT, wearable devices and servers.

"SDK" means Samsung’s health related software development kit, which includes the APIs, services, documentation, data, files, libraries, materials, sample code, software (source code and object code), and tools provided or made available to Provider by Samsung pursuant to this Agreement for use in connection with the development of applications and Services, research, including any Updates (as defined under Clause 1.15 of the SDK License Agreement) that Samsung may provide or make available. For the purpose of clarity, SDK is Samsung’s proprietary information and is not open source nor available in the public domain.

"Service" means a software program or a service developed and made available by Provider for specific use with the Samsung Devices in compliance with the Documentation and the program requirements and under Provider's own trademark and/or brand, including, in respect of such software programs, all bug fixes, enhancements, modifications, new releases, new versions, revisions, supplements, updates and upgrades.

"Term" means collectively the Initial Term (defined below), the Renewal Term (defined below) and any continuing period prior to either termination or expiration as the case may be.

"Territory" means worldwide, except the countries that are subject to sanctions or embargos under Applicable Law (including without limitation, the UN, US, EU sanctions regulations), unless otherwise explicitly stated in this Agreement.

"Trademarks" means the trademarks, trade names, service marks, designs, logos, domain names, along with any other distinctive brand features of each party, respectively, as owned (or licensed) by such party.

"Updates" means, in respect of the SDK, any bug fixes, enhancements, modifications, new releases, new versions, supplements, updates or upgrades.

"User" means any person or entity that uses the Services.

"User Data" means information in any media Processed by Provider, that identifies, relates to, describes, is reasonably capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular User, User’s device, or User’s household, including without limitation, biographical and profile information, identifiers (including online and device identifiers), location, transactional and financial information, and dated related to Users’ exercise, nutrition, and health.

2. TERM OF AGREEMENT.

2.1.

The "Initial Term" of this Agreement shall commence on the Effective Date and continue for two (2) years, unless otherwise terminated earlier in accordance with Clause 11 (Termination). Following the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (each, a "Renewal Term" and together with the Initial Term, collectively the "Term"), unless either party provides written notice of termination at least sixty (60) days prior to the end of the then-current term of such Party’s intent to terminate this Agreement. For the avoidance of doubt, nothing in this Agreement shall be interpreted as a commitment by Samsung to provide the Service through Samsung Platform during the Term.

2.2.

The Term shall be subject to any early termination rights set forth in Clause11 (Termination).

3. DEVELOPMENT AND MAINTENANCE OF SERVICE.

3.1.

Provider shall develop and provide the Service. In the event Provider receives or uses the SDK in developing the Service, Provider shall abide by the terms and conditions of this Agreement and the SDK license terms attached under Appendix 1.

3.2.

Unless otherwise agreed differently between the parties, Provider shall have the ownership to the Service.

3.3.

The Service shall not be developed, operated, and marketed (i) to be used in any medical, life-saving or life sustaining systems (ii) to be used for the diagnosis of disease or the cure, mitigation, treatment, or prevention of disease or for any use that is intended to affect bodily structure or function or (iii) to be used as an accessory to a regulated medical device or to transform a computing platform into a regulated medical device unless the Service has obtained any and all necessary approval, license, or clearance from the relevant authority under the applicable laws and regulations. The Service shall meet any guidelines of Samsung as communicated to Provider from time to time. If any Service is not of satisfactory quality or has not been approved by Samsung, Samsung shall use its reasonable endeavors to notify Provider as soon as practicable and without prejudice to any other rights of Samsung, Provider shall immediately provide replacement or modifications of the Service at no extra cost.

3.4.

Provider shall be solely responsible for providing support to Users and to Samsung with any and all sufficient services, supports, fixes, patches, workarounds, updates, enhancements, maintenance and/or handling any customer complaints ("Maintenance") in relation to the Service. Should there be any request for Maintenance from a User or Samsung, Provider shall perform any Maintenance necessary as soon as commercially practicable. For the avoidance of doubt, Samsung will provide customer service to Users for issues solely related to Samsung Devices or Samsung Platform only.

3.5.

In case Samsung makes available any updates, upgrades, improvements, enhancements, bug fixes, patches and similar items (collectively "Enhancements") for the SDK or Samsung Platform, Provider shall immediately incorporate such Enhancements into the Provider’s Service at Provider’s own cost.

4. RESTRICTIONS ON SERVICE.

4.1.

Provider shall not place, display or make available any advertisements, marketing or promotional claims ("Claims") on and within the Services without prior written consent by Samsung. Any Claims approved by Samsung shall be in compliance with any Applicable Law and Samsung’s Advertising Guidelines set forth in Appendix 2 (as amended and supplemented from time to time at Samsung’s sole discretion) and Provider shall not make Samsung Platform, Samsung Device, or Samsung server a medical device.

4.2.

Provider shall not place, insert, make available or sell Processed Data.

4.3.

In case Provider plans to take down or remove the Service from Samsung Platform during the Term Provider shall provide Samsung prior written notice with reasonable explanation and terminate this Agreement pursuant to Clause 11 (Termination).

4.4.

Provider shall incorporate the disclaimer in Appendix 3 in the Service in multiple languages as requested by Samsung and make such disclaimer available to Users before using the Service.

4.5.

Provider acknowledges and agrees that at any time and at the sole discretion of Samsung, with or without notice to Provider, Samsung may remove any Service from the Samsung Platforms or any Samsung Devices. In the event of malfunctions, errors, or user complaints in the Service, Samsung may remove such Service or restrict access to the Samsung Platform, SDK, and User Data.

4.6.

Provider acknowledges and agrees that Samsung may suspend the operation of the Samsung Platforms or SDK, or cease to use all or any portion of the Samsung Platforms or SDK at Samsung’s sole discretion.

5. GRANT OF LICENSE.

5.1.

Subject to the terms and conditions of this Agreement, Samsung grants to Provider, a non-exclusive, non-transferrable, non-assignable, and revocable (subject to Clauses 4 and 10) license, during the Term, within the Territory to allow Provider to use Samsung Platform and SDK for the purpose of development of Service and making available the Service to Users, subject to Provider acquiring appropriate consent from Users (including notice to Users of such collection and transfer of User Data from Samsung Devices) in accordance with Provider's own privacy policy or privacy notice which shall be as comprehensive as that of Samsung's privacy policy (https://account.samsung.com/membership/terms/) and Samsung Health Privacy Policy (https://health.apps.samsung.com/privacy) and all Applicable Laws, rule, regulations including but not limited to privacy laws.

5.2.

Provider hereby grants to Samsung, and its Affiliates, a world-wide, and royalty-free license during the Term to display and use those of Provider’s Trademarks and icon images of the Service that Provider provides to Samsung in connection with (i) the distribution of the Service via Samsung Platform (if any) in accordance with this Agreement or (ii) Samsung’s marketing purposes.

5.3.

Nothing in this Agreement provides Provider a right to use any of Samsung or its products and services’ names or Trademarks without prior written approval of Samsung.

6. REPRESENTATIONS AND WARRANTIES.

6.1.

Provider acknowledges and agrees that 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 information that Provider can demonstrate by written evidence: (i) information that is generally and legitimately available to the public through no fault or breach by Provider, (ii) information that Samsung makes generally available to the public, (iii) information that Provider independently develops without use or reliance of any Confidential Information, (iv) information that Provider lawfully obtains from a third party who has the right to transfer or disclose the information to Provider without limitation, or (v) any Open Source Software included in the SDK, the licensing terms of which do not contain obligations of confidentiality.

(a) it 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; and
(b) it shall comply with all Applicable Laws and regulatory requirements, and obtain and maintain for the Term all permits and licenses applicable or necessary for the performance of its obligations under this Agreement.

6.2.

Provider further represents and warrants to Samsung that:

(a) it has all necessary right, title and interest in the Service and its Trademarks in order to grant the license to Samsung in accordance with this Agreement;
(b) if the Service includes any third-party materials, Provider further represents and warrants that it owns all the legal right or valid legal permission to distribute such third-party materials in the Service to general users in accordance with this Agreement;
(c) the Service is free from material errors and defects, and in compliance with any and all specifications and all Applicable Laws;
(d) it has obtained all necessary permission, approval, license, clearance from the local authorities if the Service is considered to be a medical device under the Applicable Law;
(e) it acknowledges and agrees that Samsung Platform and Samsung Device are strictly intended for non-medical purposes only, and that Samsung Health is a personal wellness and fitness Service solely intended for non-medical purposes that measures, collects and analyzes certain wellness and fitness data to assist users to maintain a healthier lifestyle.
(f) the Service or the use of such Service, any marketing claim, or any action or omission of Provider and/or its Affiliates shall not affect or cause the Samsung Platform and Samsung Device to be considered as a medical device under the Applicable Law;
(g) the Service does not include any material which is harmful, inaccurate, pornographic, abusive, obscene, threatening, defamatory, seditious or contrary to public policy or insulting to the public or to a section of the public, or which encourages illegal activities or promotes software or services which deliver unsolicited e-mail;
(h) no further royalties are payable by Samsung to any third parties for the distribution or any other use of the Service in accordance with this Agreement;
(i) the Service does not contain any viruses or other computer programming routines that may damage or detrimentally interfere with any computer or telecommunications network, equipment or mobile phones;
(j) if Samsung identifies to Provider in writing any additional actions that are reasonably necessary to protect consumers from financial or other harm or to comply with Applicable Law or requests by any government regulator, Provider shall promptly undertake such additional actions; and
(k) Provider shall not provide Service or its related services to the countries that are subject to sanctions or embargos under Applicable Law (including without limitation, the UN, US, EU sanctions regulations).

6.3.

Samsung does not warrant that the Samsung Platform, SDK or Samsung Device will be fault free or free of interruptions and Samsung shall have no liability to Provider for any failure of the Samsung Platform, SDK or Samsung Device whether this arises from a technical fault or other failure in the Samsung Platform, SDK or Samsung Device.

7. USER DATA.

7.1.

In the event Provider Processes any User Data, Provider shall only Process (including without limitation obtaining proper consent and providing appropriate notices and/or disclosures, to the extent required) User Data to the extent expressly permitted by Samsung and Provider shall be solely responsible for ensuring that all User Data remain confidential and that any such Processing of such User Data complies with all Applicable Law and its applicable privacy policy (which shall at all times comply with Applicable Law). Provider shall immediately notify Samsung in writing of any violation hereof, and shall immediately notify Samsung in writing prior to any transfer of User Data to Samsung if such transfer would violate any Applicable Law, and in no event shall Provider transfer User Data to Samsung unless and until such violation can be removed or corrected. Any User Data contemplated under this Agreement may be outlined in a supplemental agreement to this Agreement, and any and all terms relating to the Processing of User Data herein shall apply to such User Data, and to such supplemental agreement (if applicable) as if fully set forth therein.

7.2.

Provider shall ensure that its authorized employees, subcontractors, and agents process User Data solely for the purpose of providing the Service, and solely to the extent necessary to provide the Service, and in a manner in accordance with this Agreement and all Applicable Laws. Provider shall not disclosure User Data to third parties (including its subcontractors and agents) unless such disclosure is necessary to provide the Service, and prior to any such disclosure, Provider shall enter into a written, valid, and enforceable agreement with such third party that includes terms no less restrictive than the obligations herein and in accordance with Applicable Law ("Third Party Agreement"), and further, (i) Provider and such third party shall be jointly and severally liable for any breach of Applicable Law or a breach of this Agreement, including any supplements to the Agreement entered into from time to time, and (ii) Provider shall ensure to include the terms of Clause 7.2(i) in any Third Party Agreements. FOR THE AVOIDANCE OF ANY DOUBT, PROVIDER IS NOT PERMITTED TO USE OR DISCLOSE USER DATA TO THIRD PARTIES FOR PURPOSES OF ADVERTISING, MARKETING, SELLING OR DATA MINING.

7.3.

Provider shall implement and maintain a written information security program that incorporates administrative, technical, and physical safeguards designed to ensure the security, confidentiality, and integrity of User Data. Such safeguards should be commensurate with the type and amount of User Data being processed by Provider and should, at a minimum, protect User Data against reasonably anticipated threats or hazards, including from unauthorized access, destruction, use, modification, or disclosure. In the event of any Data Security Breach affecting User Data, Provider shall provide Samsung with written notice of such Data Security Breach promptly, and in no event later than one (1) business day following the occurrence of such breach. Such notice shall summarize in reasonable detail the impact of such breach upon Samsung and whose User Data is affected and the corrective action to be taken by Provider. Provider further agrees that it is solely responsible (including at its own cost and expense) for taking all actions required under Applicable Law (including obligations that Applicable Law imposes on Samsung), and any other actions that are commercially reasonable based on the circumstances and assisting Samsung with any and all remedial and corrective actions to be undertaken by Samsung pursuant to Applicable Laws. Such actions shall include, but are not limited to, undertaking an investigation of such Data Security Breach, making any public announcements or notifications relating to such Data Security Breach (provided any such announcements or notifications referring to Samsung or any of its products or services must be expressly approved in writing by Samsung prior to the making of such announcement or notification), taking all necessary and appropriate corrective action to prevent a recurrence of such Data Security Breach, and taking all remediation efforts that are required by Applicable Law as a consequence of any Data Security Breach or that have been required by any governmental authority in similar circumstances. Provider shall provide Samsung prompt and regular updates regarding the actions it has taken in accordance with this paragraph. Further, in the event of a Data Security Breach, Company shall provide Samsung with all necessary materials, documents and other information to enable Samsung to confirm that Company has complied with its obligations under this Clause.

7.4.

Provider shall provide Samsung with all necessary materials, documents, and any other information to enable Samsung to confirm that Provider has complied with its obligations under this Agreement. Provider shall also allow Samsung, or an auditor mandated by Samsung, at any time and at Provider’s sole cost and expense, to carry out audits to determine whether or not any User Data is being or has been Processed in compliance with Applicable Law and the terms of this Agreement, and Provider shall comply with such request. Following completion of any audit conducted pursuant to this Agreement, Samsung shall have the right to notify Provider in writing of any alleged risks or threats identified during such audit and/or non-conformance to generally accepted trade practice in the industry (each a "Security Issue"). To the extent that such Security Issues exist and are Provider’s responsibility, the Provider shall, within ten (10) days of receipt of such written notification, either correct such Security Issues or provide Samsung with a plan acceptable to Samsung for remediating the Security Issues. If (i) the Security Issues are not corrected, or (ii) if an acceptable plan for correcting them is not agreed to during such period, or (iii) if an acceptable plan is not executed according to its schedule, in addition to any other rights and remedies available to Samsung, Samsung may, by giving Provider written notice thereof, immediately terminate this Agreement and any other agreement entered into with Provider, including without limitation the agreement referred to in Clause 3.1 of this Agreement, in whole or in part, and demand from Provider a pro rata of any fees paid or payable under this Agreement or any other agreement, which the Provider shall deliver to Samsung within thirty (30) days.

7.5.

Provider shall provide any and all assistance requested by Samsung in order for Samsung to comply with its obligations under Applicable Law. If Provider receives any complaint, notice, or communication from a governmental or regulatory authority or User relating to the Processing of User Data, Processor shall, to the extent permitted by Applicable Law, within one (1) business day notify Samsung and provide such information as Samsung shall request in that regard.

7.6.

Upon Samsung’s request, the Parties will execute an addendum or supplement to this Agreement in response to new or amended Applicable Law to further address the Parties’ rights and responsibilities with respect to User Data.

8. INDEMNIFICATION.

8.1.

Subject to the terms and conditions of this Clause 8, Provider shall defend, indemnify and hold harmless Samsung, and its directors, officers, employees, agents and its Affiliates (including their directors, officers, employees and agents) (collectively, the "Samsung Indemnified Party") from and against any and all judgments, settlements, penalties, costs and expenses (including attorneys’ fees) paid or incurred, sustained or suffered by the Samsung Indemnified Party in connection with claims by any user or any third party which arise from or relate to (i) the use of the Service under this Agreement including, but not limited to the Processing of User Data or Data Security Breach, or a third party’s Processing of User Data, including a breach by such third party of any Third Party Agreements or Applicable Law, (ii) claim(s) alleging that the Service violates or infringes any Intellectual Property Rights of any third party, (iii) Provider's and/or its Affiliates' (or any Authorized User's) use of the SDK, (iv) the Services, or (v) a violation by Provider of any Applicable Laws or breach of Provider’s warranties, representations, covenants or obligations hereunder.

8.2.

Provider acknowledges that the SDK is not intended to be used in the development of any Service where death, personal injury, or severe physical or environmental damage could result from errors or inaccuracies in the content, data or information provided by the Service or by Service failures. To the extent permitted by law, Provider agrees to indemnify, defend and hold harmless each Samsung Indemnified Party from any Losses incurred by such Samsung Indemnified Party as a result of Provider's use of the SDK in the development of any such Services.

8.3.

Provider must not enter into a settlement or like agreement with any third party that affects Samsung's rights or binds Samsung in any way related to or arising from Provider's (or any Authorized User's) use of the SDK without the prior written consent of Samsung.

8.4.

The indemnities given in this Clause are subject to the following:

(a) the Samsung Indemnified Party will promptly inform the indemnifying party in writing of such claim, demand or suit and the indemnifying party will fully cooperate in the defense of such claim provided that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); and

(b) the Samsung Indemnified Party will not agree to the settlement of any such claim, demand or suit prior to a final judgment thereon without the consent of the indemnifying party which shall not be unreasonably withheld.

8.5.

The indemnities given in this Agreement shall apply whether or not legal proceedings are instituted, and if such proceedings are instituted, irrespective of the means, manner or nature of any settlement, compromise or determination. The said indemnities shall survive the termination of this Agreement.

9. LIMITATION OF LIABILITY.

9.1.

Except to Restrictions on Service (Clause 4), Representations and Warranties (Clause 6), User Data (Clause 7), Indemnification (Clause 8), and Confidentiality (Clause 11), under no circumstances will either Party be liable for any indirect, incidental, special, punitive or consequential damages whatsoever, including but not limited to loss of revenues, profits or business or business interruption arising out of or in connection with this Agreement, regardless of whether such damages could have been foreseen or prevented by either Party.

9.2.

Nothing in this Agreement shall be construed to limit or exclude any Party’s liability for death or personal injury caused by such Party or its employees or contractors or for fraudulent misrepresentation or fraud.

9.3.

THE RIGHTS AND REMEDIES OF SAMSUNG UNDER THIS AGREEMENT SHALL NOT BE SUBJECT TO ANY LIMITATION OF ACTIONS, ARBITRATION, OR ANY OTHER LIMITING PROVISIONS SET FORTH IN THE OTHER AGREEMENTS MADE BETWEEN THE PARTIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, AND NOTWITHSTANDING ANYTHING IN THE OTHER AGREEMENTS TO THE CONTRARY, (I) THERE SHALL BE NO EXCLUSIONS OR LIMITATIONS OF COMPANY’S LIABILITY ARISING UNDER THIS AGREEMENT, AND (II) SAMSUNG SHALL NOT BE PRECLUDED FROM IMMEDIATELY PURSUING ANY RIGHTS OR REMEDIES IT MAY HAVE UNDER OR RELATING TO THIS AGREEMENT.

10. DISCLAIMER.

SAMSUNG EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES INCLUDING, WITHOUT LIMITATION, ALL STATUTORY AND IMPLIED WARRANTIES, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE, ALL WARRANTIES THAT SAMSUNG DEVICES, SAMSUNG PORTAL AND/OR OTHER GOODS AND SERVICES OF SAMSUNG SHALL BE UNINTERRUPTED OR ERROR FREE, AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, AND USAGE OF TRADE, OR THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION.
FURTHER, SAMSUNG EXPRESSLY DISCLAIMS ANY AND ALL RESPONSIBILITY, LIABILITY, OR CLAIMS FOR SUPPLIER’S SERVICES.

11. CONFIDENTIALITY.

11.1.

Both Parties agree not to, and shall ensure that their employees, agents and advisors do not, disclose to third parties, nor use for any purpose other than as contemplated in this Agreement any confidential or proprietary information arising or disclosed pursuant to this Agreement (including but not limited to the terms of this Agreement, the Parties' trade secrets, User data and information not generally known to the public such as business plans, strategies, practices, products, personnel and finances), that either: (a) clearly is designated as confidential or proprietary or the like thereof, if it is disclosed in written or other tangible form, including any electronic or magnetic form, or identified at the time of disclosure as being confidential and confirmed as confidential in written summary form within thirty (30) days of such disclosure, if it is disclosed orally or visually; or (b) should reasonably be considered, given the nature of the information or the circumstances surrounding its disclosure, to be confidential ("Confidential Information").

11.2.

Confidential Information will not include information, which: (i) is disclosed with the prior written permission of the Party to whom such information belongs; (ii) is already known to, or obtained by independent means, or independently developed, by the recipient; or (iii) is already in the public domain through no fault of the recipient; or (iv) the recipient receives from a third person free to make such disclosure without breach of any legal obligation.

11.3.

This Clause 11 shall survive for three (3) years after termination or expiry of this Agreement. Notwithstanding the foregoing, a recipient may disclose confidential information of the other Party if required to do so by law, court order or request by any government or regulatory authority.

12. TERMINATION.

12.1.

In addition to any other remedy available at law or in equity, either Party may terminate this Agreement (including all Appendices continuing at the time of such notice) immediately upon written notice:

(a) if the other Party breaches any warranty or material obligation of this Agreement and where such breach is curable fails to cure the breach within fourteen (14) days from the receipt of a written request to cure from the non-breaching Party; or

(b) if the other Party ceases or threatens to cease to carry on all or a substantial part of its business, or becomes insolvent, or makes an assignment for the benefit of its creditors, or a trustee or receiver is appointed for its business or the Party’s property, or an order is made for the winding up of it (other than for the purposes of amalgamation or reconstruction).

12.2.

Samsung may terminate this Agreement (including all Appendices continuing at the time of such notice) upon thirty (30) business days prior written notice to Provider without cause.

12.3.

Samsung may terminate this Agreement (including all Appendices continuing at the time of such notice) immediately upon written notice to Provider if:

(a) the licenses referred to in Clause 5 (Grant of License) are revoked, suspended or withdrawn for any reason whatsoever; or

(b) the Provider breaches any representations and warranties in Clause 6 or any provision in Clause 7 (User Data); or

(c) there is any change in control of Provider (whether by merger, stock transfer or otherwise) except in the case of an initial public offering or the acquisition of control by an entity to which assignment is permitted pursuant to Sub-Clause 15.2.

12.4.

Promptly upon termination of this Agreement and in any event within thirty (30) days of termination, each Party shall, if requested by the other Party, return or destroy all confidential and proprietary information referred to in Clause 11.

12.5.

The termination of this Agreement for any reason whatsoever shall not affect any rights or liabilities that have accrued prior to or upon termination, nor shall it affect any Clauses or Sub-Clauses which are intended expressly or impliedly to continue after termination.

12.6.

Notwithstanding anything stated to the contrary in this Agreement, Samsung and its Affiliates may, upon any termination or expiration of the Agreement, continue to utilize the licenses granted in Clause 5 for the period of six (6) months following the date of any termination of this Agreement.

12.7.

In the event of any termination or expiration of this Agreement and to the extent Provider’s server or system provides relevant support, Provider shall provide at least two notices of such termination to the Users with the first notice no less than ninety (90) days prior to such termination and the second notice no less than forty five (45) days prior to such termination. Provider shall consult in good faith with Samsung regarding the contents of such notice and such notice shall place neither blame nor fault upon either Samsung or its Affiliates

Clauses 6 (Representations and Warranties), 7 (User Data), 8 (Indemnification), 9 (Limitation of Liability), 10 (Disclaimer), 11 (Confidentiality), 12 (Termination), 14 (Notices), and 15 (General) will survive the expiration or termination of this Agreement.

13. FORCE MAJEURE.

13.1.

A Party will not be liable to the other for any delay in or failure to perform its obligations as a result of any cause beyond its reasonable control. The Party so affected shall as soon as practicable:

(a) notify the other Party of such fact and of the period of its continuance and consequences which are expected; and

(b) take all reasonable action to minimize the consequences of the relevant events and to resume due performance of the obligations excused as soon as practicable.

13.2.

If such delay or failure continues for at least three (3) months, the non-delaying or non-failing party will be entitled to forthwith terminate this Agreement by notice in writing in which event, no Party shall have any claim against the other in respect of such termination.

14. NOTICES.

14.1.

Any notice desired or required to be served on a Party hereunder shall be given to such Party in writing by personal delivery (notice deemed effective upon receipt), overnight courier (notice deemed effective upon receipt), by mail (notice deemed effective three days after mailing) or facsimile transmission (notice deemed effective upon electronic confirmation of facsimile receipt), or email (for purposes of termination notice, such notice deemed effective upon the earlier of receipt or one (1) day after dispatch) addressed to such Party as follows:

(a) If to Samsung,
Name: Samsung Electronics, Ltd.
Address: 129 Samsung-ro, Yeongtong-Gu,
Suwon-City, Gyeonggi-Do,
16677 South Korea
Attn: Health S/W R&D Group, Mobile Division
E-mail: its.shealth@samsung.com

(b) For Provider, use the name, address, phone number, and email address provided through the Samsung Developers Site (https://developer.Samsung.com/health) or Samsung’s designated website or other appropriate means communicated between the Parties. It is the responsibility of Provider to review its email address and other contract information up to date.

14.2.

Provider specifically agrees to receive notices and other communications to be made to Provider pursuant to this Agreement by email and agrees that any notices that Samsung sends to Provider by email will satisfy any legal communication requirements.

15. GENERAL.

15.1.

Costs

Each Party shall bear its own costs in connection with the execution of this Agreement and in relation to the fulfilment of its obligations under this Agreement.

15.2.

Assignments.

This Agreement will be binding upon and inure to the benefit of the Parties, their respective personal representatives, and permitted successors and assigns. Provider may not assign or otherwise transfer or sub-contract any of its rights or delegate any of its duties under this Agreement without the prior written consent of Samsung. If Provider is permitted to subcontract the performance of any or all of its obligations under this Agreement, Provider shall remain liable to Samsung for the performance of its obligations under this Agreement.

15.3.

Relationship between the Parties.

There is no joint venture, partnership, agency or fiduciary relationship existing between the Parties and the Parties do not intend to create any such relationship by this Agreement.

15.4.

Amendments, Waivers.

This Agreement may not be amended, modified or superseded, unless expressly agreed to in writing by both Parties. No provision of this Agreement may be waived except by an instrument in writing signed by the Party against whom the waiver is to be effective. The failure of either Party at any time or times to require full performance of any provision of this Agreement will in no manner affect the right of such Party at a later time to enforce the same.

15.5. Severability.

If any provision or term of this Agreement, not being of a fundamental nature, is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of this Agreement will not be affected.

15.6.

Counterparts.

This Agreement may be signed in two or more counterparts.

15.7.

Rights of Third Parties

A person who is not party to this Agreement shall have no rights under this Agreement.

15.8.

Entire Agreement

This Agreement contains the Parties’ entire understanding and supersedes all prior agreements in connection with the subject matter of this Agreement provided that nothing in this Sub-Clause will exclude any liability for fraud. For clarity, this Agreement shall not affect any pre-existing agreements between the Parties in respect of Provider’s Services for Samsung mobile devices

15.9.

Priority of documents.

In the event of any inconsistency between this Agreement and those in an Appendix, the latter shall prevail.

15.10.

Public Announcement.

Any press release, public announcement or media communication regarding this Agreement may only be made after joint approval by both Parties.

15.11.

Governing Law and Arbitration.

This Agreement shall be governed by and construed in accordance with the laws of Korea (excluding conflict of laws provisions which may direct the Service of another jurisdiction’s laws). 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.

APPENDIX 1 SDK LICENSE TERMS AND CONDITIONS ("T&C")

1. Definitions.

In addition to the defined terms under the Agreement, the following capitalized terms shall apply to this T&C with the meanings below.

1.1.

"Authorized Users" means Licensee's employees or other authorized contractors who have written and binding agreements with Licensee to protect Samsung's and other third party Confidential Information (to the extent they will have access to such Confidential Information) from unauthorized use or disclosure.

1.2.

"Confidential Information" means any and all business, financial, contractual, marketing and/or technical information, in whatever form embodied, which has been or may be disclosed, or to which access is provided, by Samsung to LICENSEE which a reasonable person would consider, from the nature of the information and circumstances of disclosure, to be confidential to Samsung. For the avoidance of doubt, SDK, any sample, mock-up, drawings, documents, materials, UI regarding any products or services provided by Samsung shall be considered as Samsung's Confidential Information.

1.3.

"Documentation" means any technical specifications and other specifications or documentation that Samsung may make available or provide to Licensee relating to or for use in connection with the SDK.

1.4.

"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.

1.5.

"Published API(s)" means the documented Service Programming Interface(s) contained in the SDK.

1.6.

"Sample Code" means the software marked as 'sample' or delivered in a folder marked 'sample' that may be included as a part of the SDK. Sample Code may be in source code or object code format.

1.7.

"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,

(b) any software placed in the public domain and accessible to anyone without any specific license terms attached there to,

(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.

1.8.

"Updates" means, in respect of the SDK, any bug fixes, enhancements, modifications, new releases, new versions, supplements, updates or upgrades.

2. Relationship with Samsung.

Licensee understands and agrees that by accepting this SDK, no legal partnership or agency relationship is created between Licensee and Samsung. Neither Licensee nor Samsung is a partner, an agent or has any authority to bind the other. Licensee agrees not to represent otherwise.

3. Grant of SDK License and Restrictions.

3.1.

Subject to the provisions of this T&C, Samsung hereby grants Licensee a limited, non-exclusive, personal, revocable, non-sublicensable and non-transferable license during the Term to:

(a) install the SDK on limited number of devices that Licensee owns or controls, for internal use by Licensee or Authorized Users solely for the purpose of developing or testing Services; and

(b) create limited number of Documentation and distribute such Documentation to Authorized Users for internal use solely for the purpose of developing or testing Services.

3.2.

Licensee acknowledges and agrees that a Service must satisfy Samsung's technical standards before it can be tested on the relevant Samsung product pursuant to Samsung's internal quality assessment process. Samsung reserves the right to reject any Service at its sole discretion. Samsung's testing of a Service shall not be construed as Samsung's approval on the Service on any aspect. If a material change is made to the Service, Licensee must submit the revised version for Samsung's approval.

3.3.

Licensee must ensure that the Samsung copyright disclaimers 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 T&C.

3.4.

Licensee must not, directly or indirectly, sell, redistribute, rent, lease, lend or sublicense all or any part of the SDK, or enable or allow others to do such things. Licensee must not use the SDK for any purpose that is not expressly permitted under this T&C. Except to the extent permitted by licensing terms in respect to the Third Party Software components or Sample Code included in the SDK, Licensee must not, directly or indirectly, copy (except as expressly permitted under this T&C), 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 things. The foregoing restrictions apply except as prohibited by applicable law and only to the extent of such prohibition.

3.5.

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 and licensors of the SDK.

3.6.

Except for the limited license granted to Licensee in this T&C, all rights, title, and interest in and to the SDK and any Updates that are made available to Licensee under this T&C 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 T&C, 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.

3.7.

Except as expressly permitted under this T&C, nothing in this T&C grants Licensee any right to use any of SAMSUNG's trademarks, trade names, copyrights, service marks, logos, domain names, patents, trade secrets, other brand features distinctive to SAMSUNG or other intellectual property, which remain, at all times, the sole and exclusive property of SAMSUNG.

3.8.

SAMSUNG may, at any time without notice, extend, enhance, or otherwise modify the SDK. If SAMSUNG makes available Updates, such Updates will be governed by this T&C (unless a separate license is provided with the Update, in which case the terms of that license will govern the Update). Licensee acknowledges that SAMSUNG has no obligation, whether express or implied, to announce or make available any Updates. 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 T&C.

3.9.

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.

3.10.

SAMSUNG has no obligation to provide any maintenance, technical or other support in respect of the SDK.

3.11.

If the Service is distributed, offered, resold, or licensed ("Distribute") under the white-labeling of a third party, SAMSUNG may object to such Distribution if SAMSUNG deems the Distribution adversely affects SAMSUNG's business. In that case, Licensee shall immediately cease to Distribute the Service and discuss in good faith to find an alternative which should be mutually beneficial to both Licensee and SAMSUNG.

4. Conditions and Requirements.

4.1.

Licensee acknowledges and agrees that the Services must comply with the conditions and requirements set out below, as modified by SAMSUNG from time to time:

(a) Licensee will comply with all applicable laws and regulations in connection with this T&C, including without limitation all applicable laws relating to privacy and security.

(b) Licensee will be solely responsible for any and all claims and/or damages arising from or related to the Service 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 Service other than the 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.

(c) Services must comply with all applicable laws and regulations (including the laws and regulations of any jurisdiction in which the Services are offered or made available) and SAMSUNG's internal policies and guidelines. Before Services are available to customer, end users or the public, Licensee shall obtain all required and necessary permissions and/or approvals from relevant government authorities. Licensee must not design or market Services for the purpose of violating any legal rights of any person (including but not limited to privacy rights).

(d) Without limiting any other Licensee's obligations under this T&C, Licensee must ensure that any Service that offers health information or location information based services or functionality notifies and obtains consent from an individual before the individual's health or location data is collected, transmitted or otherwise used by the Service. In addition, Services that use health information based APIs shall comply with SAMSUNG's registration process.

(e) Services that use location-based APIs 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 Services that includes the following notice: "REAL TIME LOCATION DATA ACCESSED VIA THIS SERVICE MAY BE INACCURATE OR INCOMPLETE. LICENSEE'S USE OF THIS SERVICE IS AT ITS SOLE RISK." Licensee shall not use the Service for nuclear energy equipment, air traffic control, the operation of communication system, public transportation control, life support devices, or other devices that may cause deaths, injuries or severe physical or environmental losses in the event that the Service fails to perform in such devices. Any attempt to do so shall be deemed as a material breach under this T&C.

(f) Services must not disable, override or otherwise interfere with any SAMSUNG-implemented system including, but not limited to, those that are intended to notify a user that the user's location data is being collected, transmitted, maintained, processed or used, or intended to obtain consent for such use. Services may not provide services for which the user's consent has been denied or withdrawn.

(g) If a Service includes any Third Party Software, Licensee must comply with all licensing terms applicable to such Third Party Software. However, Licensee shall separate the portion of the Third Party Software from the portion of the SDK in Licensee's Service and shall not cause the portion of the SDK in Licensee's Service, any derivative works thereof, and/or SAMSUNG's Confidential Information to be subject to the licensing terms applicable to such Third Party Software (e.g., public disclosure, public distribution). Licensee shall indemnify, defend and hold harmless SAMSUNG, its distributors and its customers from and against any and all claims, demands, damages, costs or expenses (including reasonable attorney's fees) and liabilities arising out of or in relation to the use of Third Party Software.

(h) Services 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).

(i) Prior to distribution, public release or public demonstration of the Service, Licensee shall obtain prior key signing for the Service from SAMSUNG.

(j) Licensee shall promptly respond to SAMSUNG regarding the use of policies and APIs in connection with the Service and/or SDK, upon SAMSUNG's request.

(k) Licensee warrants that the use of Licensee's Service does not and will not infringe the intellectual property rights or other proprietary rights of any third party and shall immediately notify SAMSUNG in the event of any such infringement.

(l) Licensee warrants that the Service is free from material errors and defects. Licensee warrants that the Service has been designed and developed for installation and operation solely on the devices that have been fully tested and approved by SAMSUNG. Licensee warrants that the Service will operate with each applicable key.

(m) Licensee acknowledges and agrees that in connection with Licensee's use of the SDK, SAMSUNG may collect and use information about the Service and use of Service. Licensee shall obtain all consents from the users of the Service necessary for SAMSUNG to use the foregoing information for the purpose of improving SDK and for providing services, if any, related to the SDK. For the purpose of clarity, SAMSUNG reserves the right to charge for use of the SDK in the future.

(n) Where Licensee allegedly or actually breaches this Clause 5 subject to SAMSUNG's interpretation, SAMSUNG has a right to revoke the license granted under this T&C and/or block access to Published APIs by Services, at its sole discretion.

5. Licensee's Responsibilities.

Licensee represents and warrants to SAMSUNG and agrees that:

(a) Licensee has the requisite corporate authority to enter into this T&C and perform its obligations under this T&C, and this T&C 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 T&C;

(c) Licensee will be solely responsible for all activities Licensee and the Authorized Users undertake in connection with the SDK, the Services and the development of Services;

(d) Licensee acknowledges and agrees that the SDK may be under development and not compatible with commercially released version;

(e) Licensee understands and agrees the terms of this T&C are subject to change at SAMSUNG's discretion; and

(f) Licensee shall not utilize or refer the SDK for any other purposes than development of Service.

(g) the SDK is intended to enable the development of Services for general wellness and fitness purposes only.

(h) Licensee acknowledges and agrees that Samsung Health, Samsung Galaxy Store, Samsung servers or any other Samsung devices and products are strictly intended for non-medical purposes only, and that Samsung Health is a personal wellness and fitness service solely intended for non-medical purposes that measures, collects and analyzes certain wellness and fitness data to assist users to maintain a healthier lifestyle.

(i) the Service or the use of such Service, any marketing claim thereof, or any action or omission of Licensee and/or its Affiliates shall not affect or cause the SDK, Samsung Health and any other health related Samsung products and services, Samsung Galaxy Store, Samsung servers or any other Samsung devices and products to be regulated as a medical device under Applicable Law.

6. Confidentiality and Press Release.

6.1.

Licensee acknowledges and agrees that the SDK (including all test versions of the SDK) constitute "Confidential Information" for the purposes of this T&C. Notwithstanding the foregoing, Confidential Information does not include information that Licensee can demonstrate by written evidence: (i) information that is generally and legitimately 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 or reliance of any Confidential Information, (iv) information that Licensee lawfully obtains from a third party who has the right to transfer or disclose the information to Licensee without limitation, or (v) any Open Source Software included in the SDK, the licensing terms of which do not contain obligations of confidentiality.

6.2.

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 T&C 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. This Clause 6 shall survive for three (3) years after the termination or expiry of this T&C.

6.3.

Licensee must not issue any press releases or make any other public statements relating to this T&C, its terms and conditions, or Licensee's relationship with SAMSUNG without the express prior written approval of SAMSUNG.

7. DISCLAIMER OF WARRANTY.

7.1.

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.

7.2.

LICENSEE'S USE OF THE SDK IS AT ITS OWN DISCRETION AND RISK, AND SAMSUNG WILL NOT BE 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.

8. LIMITATION OF LIABILITY.

SUBJECT TO TERMS AND CONDITIONS OF THIS T&C 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 T&C, LICENSEE'S USE OF THE SDK, OR LICENSEE'S DEVELOPMENT OF SERVICES, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. THE SDK LICENSED HEREUNDER IS NOT DESIGNED OR INTENDED FOR USE TO ENABLE THE DESIGN OF SERVICES USED IN ANY LIFE SAVING OR LIFE SUSTAINING SYSTEMS, TRANSPORTATION SYSTEMS, NUCLEAR SYSTEMS, OR FOR ANY OTHER MISSION CRITICAL SERVICE IN WHICH THE FAILURE OF THE SDK COULD LEAD TO PERSONAL INJURY OR DEATH OR FOR USE IN ANY SECURITY-RELATED USE CASES. LICENSEE'S UNDERSTANDING, ACKNOWLEDGEMENT AND ACCEPTANCE OF THIS T&C ARE THE LEGAL BASIS AND CONSIDERATION FOR THE LICENSES GRANTED UNDER IT.

9. Termination.

9.1.

Right to Terminate. This T&C, the Agreement and all rights granted by SAMSUNG hereunder may be immediately terminated:

(a) by Licensee if Licensee ceases use of the SDK;

(b) by SAMSUNG: (i) if Licensee has breached any terms of this T&C or the Agreement; or (ii) if SAMSUNG is required by law to terminate this T&C or the Agreement or the rights granted by SAMSUNG;

(d) by SAMSUNG if Google develops or has developed a software development kit which is same as or similar to the SDK. Licensee agrees and acknowledges that it has been advised of the possibility of other third party developing or having developed a software development kit which is same or similar to this SDK, when executing this T&C.

(e) by SAMSUNG for any Licensee’s breach of the Agreement as it relates to Licensee’s Processing of User Data.

9.2.

SAMSUNG will have no liability to pay compensation or damages, or to provide an indemnity, of any kind as a result of terminating this T&C in accordance with its terms, and termination of this T&C is without prejudice to any other right or remedy that SAMSUNG may have, now or at any time in the future.

9.3.

Consequences of Termination. Upon the termination of this T&C: (a) all rights granted in this T&C will terminate; (b) Licensee shall promptly stop using the SDK and return the SDK to SAMSUNG or destroy all electronic copies of the SDK and, at SAMSUNG's request, provide written certification of such destruction to SAMSUNG. The provisions of Clauses 1, 3.2 through 3.11, 4, 5, 6, 7, 8, 9, 10 and 11 will survive the expiration or termination of this T&C.

10. General.

10.1. Development by SAMSUNG.

Nothing in this T&C limits or otherwise affects SAMSUNG's right to acquire, develop, license, market, promote, or distribute any product or technology that performs the same or similar functions as the Services or any other products or technologies that Licensee develops, markets, promotes or distributes, or that otherwise competes with the Services or such products or technologies.

10.2. Remedies.

Licensee acknowledges that any disclosure, use or misappropriation of Confidential Information of SAMSUNG in violation of this T&C 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.

APPENDIX 2 SAMSUNG SERVICE & ADVERTISEMENT GUIDELINES

These Guidelines provide basic rules about the type of information which advertisements can contain and what constitutes an advertisement that is not publicly acceptable. Provider acknowledges and agrees that the Samsung Advertisement Guideline may be updated or modified by time to time in Samsung’s sole discretion.

Provider represents and warrants that Provider, its advertisement and contents shall comply with the Guidelines set forth herein.

Advertisements should not be misleading or deceptive, nor should they promote illegal products or services.

In some cases, the content of advertisement is regulated by Applicable Laws or industry practice Provider shall comply with all applicable laws, regulations, and industry practice, and shall not publish content or direct visitors to sites that are inappropriate for viewing by a general audience.

Provider shall not publish the following types of marketing or promotional claims, content or advertisements (the following list is not intended to be exhaustive):

(a) that would affect or cause the Samsung Health, Samsung Galaxy Store, Samsung servers or any other Samsung devices and products to be considered as a medical device under the Applicable Law;
(b) Gratuitous displays of violence and abuse of humans and animals
(c) Content which endorses or threatens physical harm
(d) Depictions of sex, pornography, pedophilia
(e) Obscene and vulgar language, e.g. excessive swearing
(f) Any type of promotions and unnecessary references of alcohol, smoking and drug
(g) Any type of offensive references and discrimination towards humanity
(e.g. racial, political, ethnic, religious, gender-based, sexuality-based or personal)
(h) Any type of overtly political communication
(i) Any type of religious or occultism content, imagery or symbols
(j) Any form of illegal activity or their promotions (e.g. how to build a bomb, stealing, robbing, hacking, freaking, software piracy)
(k) Any type of illegal substance or activity sites with illegal, false or deceptive investment advice and money-making opportunities
(l) Any type of advertisement or promotion for products or services of "Samsung Competitors" without obtaining prior approval of Samsung. "Samsung Competitors" means any major consumer electronics manufacturers around the world or any other specific manufacturer that Samsung may designate from time to time.
(m) Any type of promotion referring to service or products of Samsung Competitors
(n) Any type of content reasonable public consensus deem to be improper or inappropriate

APPENDIX 3 DISCLAIMER

YOU HEREBY ACKNOWLEDGE AND AGREE THAT THE SERVICE THAT IS INCLUDED HEREIN, AND ANY CONTENT PROVIDED TO YOU THROUGH SUCH SERVICE, ARE BEING PROVIDED TO YOU BY [INSERT PROVIDER’S NAME] AND NOT BY SAMSUNG ELECTRONICS CO., LTD. ("SAMSUNG").
YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOUR DOWNLOAD, INSTALLATION AND USE OF ANY SUCH SERVICE AND CONTENT ARE GOVERNED BY [INSERT PROVIDER’S NAME] ‘S TERMS OF USE, LICENSE AGREEMENT, PRIVACY POLICY, OR OTHER SUCH AGREEMENTS AND THAT ANY INFORMATION AND PERSONAL DATA YOU PROVIDE TO [INSERT PROVIDER’S NAME] WILL BE SUBJECT TO [INSERT PROVIDER’S NAME]’S PRIVACY POLICY.
TO THE EXTENT PERMITTED UNDER APPLICABLE LAWS, SAMSUNG IS NOT RESPONSIBLE FOR ANY PRIVACY OR ANY OTHER PRACTICES OF [INSERT PROVIDER’S NAME] AND EXPRESSLY DISCLAIMS ANY LIABILITY IN CONNECTION WITH ANY SUCH SERVICES, CONTENTS OR YOUR USE THEREOF.