Watch Face Studio Wear OS Plugin License Agreement

READ CAREFULLY BEFORE USING WATCH FACE STUDIO WEAR OS PLUGIN (THE "TOOL"). THIS TOOL LICENSE AGREEMENT ("AGREEMENT"), IS A LEGAL AGREEMENT BETWEEN YOU ("LICENSEE") AND SAMSUNG ELECTRONICS CO., LTD. ("SAMSUNG") AND IS EFFECTIVE UPON YOUR ACCEPTANCE. BY CLICKING ON THE "I AGREE" BUTTON, INSTALLING, COPYING OR OTHERWISE USING THE TOOL, YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE "I AGREE" BUTTON AND DO NOT INSTALL OR USE THE TOOL.


Definitions
In this Agreement, the following capitalized terms shall have the meanings below:
"Affiliate" shall mean any corporation or other entity that is controlled by, or is under common control with a party (a corporation or other entity shall be deemed to control another if it owns or controls more than fifty percent (50%) of the voting stock or other ownership interest of the corporation or entity).
“Application” means one or more software programs and contents developed by Licensee in compliance with the terms and conditions of this Agreement and all applicable laws and regulations, for distribution under Licensee’s trademark or brand, and for specific use with a Samsung-branded product, including bug fixes, updates, upgrades, modifications, enhancements, supplements to, revisions, new releases and new versions of such software programs.
"Authorized Users" means Licensee's employees or other authorized contractors who have written and binding agreements with Licensee to protect the unauthorized use and disclosure of SAMSUNG's and other third party Confidential Information (to the extent they will have access to such Confidential Information).
"Confidential Information" has the meaning given in Clause 5.1.
"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) Apache License Version 2.0,  (b) BSD 2.0, and  (c) Creative Commons Attribution 2.5.
"Term" means the term of this Agreement as specified in Clause 1.
"Third Party Software" shall mean any software, computer programming code or accompanying documentation owned by any third party including, but not limited to, any of following:
(a) any software licensed from a third party, or
(b) any software placed in the public domain and accessible to anyone without any specific license terms attached thereto, or
(c) any software disclosed or distributed under a license that permits users to use, modify, improve, or distribute such software and/or documentation and requires any or all of the following: 
i. the making available of source code, object code and/or accompanying documentation of the software or any modifications to, or derivatives of, such software and/or documentation;
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.
"TOOL" means a PC Program, which includes applications, documentation, data, files, images materials, sample files, software (source code and object code), simulators and tools provided or made available to Licensee by SAMSUNG pursuant to this Agreement for use in connection with the development of Watch Faces, including any Updates that SAMSUNG may provide or make available.   Some software components of TOOL incorporate source code covered under the Apache License and GNU’s General Public License (GPL). For the purpose of clarity, TOOL is SAMSUNG's proprietary information and software is considered neither as open source nor in the public domain.


"Updates" means, in respect of the TOOL or any part of the TOOL, bug fixes, enhancements, modifications, new releases, new versions, supplements, updates or, upgrades.
"Watch Face" means a software program developed by Licensee for general use for Android watch devices and Samsung mobile devices in compliance with the program requirements and under the Licensee's own trademark and/or brand, including, in respect of such software program, all bug fixes, enhancements, modifications, new release, new versions, revisions, supplements, updates and upgrades.
1.Term
This Agreement is effective upon Licensee's acceptance, by clicking on the "I AGREE" button, and continues to be effective until terminated by Licensee or SAMSUNG in accordance with Clause 9 ("Term").

2.Grant of TOOL License and Restrictions
2.1
Subject to the provisions of this Agreement, SAMSUNG hereby grants Licensee a limited, non-exclusive, personal, revocable, non-sub licensable and non-transferable license during the Term to:
(a) install a reasonable number of copies of the TOOL on computers that Licensee owns or controls, for internal use by Licensee or Authorized Users solely for the purpose of developing Watch Face; and
(b) make a reasonable number of copies of the documentation and distribute such copies to Authorized Users for internal use solely for the purpose of developing Watch Face.
2.2
Licensee must ensure that the SAMSUNG copyright disclaimers and other proprietary notices that appear in the TOOL are retained and reproduced in full in all copies of the TOOL that Licensee makes as permitted under this Agreement.
2.3
Licensee must not, directly or indirectly, sell, redistribute, rent, lease, lend or sublicense all or any part of the TOOL, or enable or allow others to do such things. Licensee must not use the TOOL for any purpose that is not expressly permitted under this Agreement. Except to the extent permitted by licensing terms in respect to the Third Party Software components included in the TOOL, Licensee must not, directly or indirectly, copy (except as expressly permitted under this Agreement), modify, adapt, redistribute, decompile, reverse engineer, disassemble, or create derivative works of the TOOL 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.
2.4
Except for the limited license granted to Licensee in this Agreement, all rights, title, and interest in and to the TOOL  and any Updates that are made available to Licensee under this Agreement remain, at all times, the sole and exclusive property of SAMSUNG. Licensee agrees to cooperate with SAMSUNG to maintain SAMSUNG's ownership of the TOOL, and Licensee agrees to promptly provide notice of any claims or threatened claims relating to the TOOL. Apart from the license rights expressly set out in this Agreement, SAMSUNG does not grant to Licensee and Licensee does not receive, whether by implication, estoppel or otherwise, any ownership right, title or interest nor any security interest or other interest in any intellectual property rights relating to the TOOL, nor in any copy of any part of the foregoing, nor any other licenses, immunity or rights, express or implied.
2.5
Except as expressly permitted under this Agreement, nothing in this Agreement 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.
2.6
SAMSUNG may, at any time without notice, extend, enhance, or otherwise modify the TOOL. If SAMSUNG makes available Updates, such Updates will be governed by this Agreement (unless a separate license is provided with the Update, in which case the terms of that license 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 features, services and/or functionality that are different from those found in the TOOL licensed under this Agreement.
2.7
SAMSUNG has no obligation to provide any maintenance, technical or other support in respect of the TOOL.


3.Conditions and Requirements
3.1 General Conditions and Requirements
Licensee acknowledges and agrees that Watch Faces 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 Agreement (including all applicable laws and regulations in any jurisdiction in which the Watch Faces may be offered or made available);
(b) If a  Watch Face captures, collects or records any form of user or device data, images, pictures or voice data, or other recording (collectively "Recordings"), or processes, maintains, uploads, syncs, or transmits any form of user data, content or information (collectively "Transmissions"), such Recordings and Transmissions must comply with all applicable laws and regulations (including but not limited to privacy laws) as well as any SAMSUNG's internal policies or requirements in relation to such matters (including but not limited to any notice or consent requirements). In particular, Licensee must ensure that a reasonably distinctive and conspicuous visual indication that a Recording is taking place is displayed to the user as part of the  Watch Face in accordance with all applicable laws and regulations, including after notification or after obtaining consent thereto, as applicable.
(c)  Watch Faces 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.  Watch Faces may not provide services for which the user's consent has been denied or withdrawn.
(d) If a Watch Face 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 TOOL in Licensee's Application and shall not cause the portion of the TOOL in Licensee's Watch Face, 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
(e)  Watch Faces 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 or violating the legal rights of others (for example, materials that may be considered obscene, pornographic or defamatory).
(f) Licensee warrants that the use of Licensee's Watch Face 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.
(g) Licensee warrants that the Watch Face is free from material errors and defects. Licensee warrants that the Watch Face 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 Watch Face will operate with each applicable device.
(h) Licensee acknowledges and agrees that in connection with Licensee's use of the TOOL, Samsung may collect and use information about the Application and use of Application. Licensee shall obtain all consents from the users of the Application necessary for Samsung to use the foregoing information for the purpose of improving TOOL and for providing services, if any, related to the TOOL. For the purpose of clarity, Samsung reserves the right to charge for use of the TOOL in the future.

4.Licensee's Responsibilities
4.1 Licensee represents and warrants to SAMSUNG and agrees that:
(a) Licensee has the authority to enter into this Agreement and perform its obligations under this Agreement, and this Agreement does not conflict with any other agreement or obligation by which it is bound;
(b) Licensee is and will be responsible for the Authorized Users' use of the TOOL and their compliance with this Agreement; and
(c) Licensee will be solely responsible for all activities Licensee and the Authorized Users undertake in connection with the TOOL, the Watch Faces and the development of Watch Faces.

5.Confidentiality and Press Release
5.1
Licensee acknowledges and agrees that the TOOL constitute "Confidential Information" for the purposes of this Agreement, unless SAMSUNG expressly indicates otherwise or makes the terms and conditions of the TOOL publicly available. 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 TOOL, the licensing terms of which do not contain obligations of confidentiality.
5.2
Licensee must protect Confidential Information using a degree of care that is no less than that which Licensee uses to protect Licensee's own confidential information of the same or similar importance (and in any event, no less than a reasonable degree of care). Licensee may use Confidential Information solely for the purpose of exercising Licensee's rights and performing Licensee's obligations under this Agreement and Licensee must not use Confidential Information for any other purpose, or for Licensee's own or any third party's benefit, without the prior written consent of SAMSUNG. Licensee may disclose Confidential Information to the extent required by law, provided that Licensee takes reasonable steps to notify SAMSUNG of the relevant requirement prior to disclosing the Confidential Information and Licensee takes reasonable steps to obtain protective treatment against disclosure of the Confidential Information.
5.3
Licensee must not issue any press releases or make any other public statements relating to this Agreement, its terms and conditions, or Licensee's relationship with SAMSUNG without the express prior written approval of SAMSUNG.

6.DISCLAIMER OF WARRANTY
SAMSUNG EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTIBILITY, FITNESS FOR A PARTICULAR PUPOSE AND NON-INFRINGEMENT. FURTHER, SAMSUNG DOES NOT REPRESENT OR WARRANT THAT ANY PORTION OF THE TOOL IS FREE OF INACCURACIES, ERRORS, BUGS OR INTERRUPTIONS, OR IS RELIABLE, ACCURATE, COMPLETE, OR OTHERWISE VALID. THE TOOL IS PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT ANY WARRANTY OF ANY KIND FROM SAMSUNG.
LICENSEE'S USE OF THE TOOL IS AT ITS OWN DISCRETION AND RISK, AND LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE USE OF THE TOOL INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE TO LICENSEE'S COMPUTER SYSTEM OR LOSS OF DATA.


7.LIMITATION OF LIABILITY
SUBJECT TO TERMS AND CONDITIONS OF THIS AGREEMENT AND TO THE FULLEST EXTENT ALLOWED AND PERMITTED BY APPLICABLE LAWS AND REGULATIONS, SAMSUNG SHALL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO LICENSEE OR ANY THIRD PARTY THROUGH LICENSEE FOR PERSONAL INJURY OR ANY CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR IN RELATION TO THIS AGREEMENT, LICENSEE'S USE OF THE TOOL, OR LICENSEE'S DEVELOPMENT OF WATCH FACES, 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. LICENSEE'S UNDERSTSANDING, ACKNOWLEDGEMENT AND ACCEPTANCE OF THIS AGREEMENT ARE THE LEGAL BASIS AND CONSIDERATION FOR THE LICENSES GRANTED UNDER IT.


8.Indemnity
8.1
To the fullest extent permitted by law, Licensee agrees to indemnify, defend and hold harmless SAMSUNG, its Affiliates, directors, officers, employees, independent contractors and agents (each a "SAMSUNG Indemnified Party") from any and all claims, losses, liabilities, damages, expenses and costs (including without limitation reasonable attorney’s fees) (collectively "Losses") incurred by a SAMSUNG Indemnified Party as a result of Licensee's (or an Authorized User's) breach of this Agreement, any claims that the Watch Faces violate or infringe any third party intellectual property or proprietary rights, or otherwise related to or arising from Licensee's (or any Authorized User's) use of the TOOL, the Watch Faces or Licensee's (or any Authorized User's) development or distribution of  Watch Faces.
8.2
Licensee acknowledges that the TOOL is not intended to be used in the development of any Application 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 Application or by Application failures. To the extent permitted by law, Licensee agrees to indemnify, defend and hold harmless each SAMSUNG Indemnified Party from any Losses incurred by such SAMSUNG Indemnified Party as a result of Licensee's use of the TOOL in the development of any such Applications.
8.3
Licensee 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 Licensee's (or any Authorized User's) use of the TOOL without the prior written consent of SAMSUNG.


9.Termination
9.1 Right to Terminate.
This Agreement and all rights granted by SAMSUNG hereunder may be immediately terminated:
(a) by Licensee if Licensee ceases use of the TOOL;
(b) by SAMSUNG: (i) if Licensee has breached any terms of this Agreement; or (ii) if SAMSUNG is required by law to terminate this Agreement or the rights granted by SAMSUNG; or
(c) by either party for any reason or no reason upon thirty (30) days prior written notice to the other party.


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


9.2 Consequences of Termination
Upon the termination of this Agreement: (a) all rights granted in this Agreement will terminate; (b) Licensee shall promptly stop using the TOOL and return the TOOL to SAMSUNG or destroy all electronic copies of the TOOL and, at SAMSUNG's request, provide written certification of such destruction to SAMSUNG. The provisions of Clauses 1, 2.3, 2.4, 2.5, 2.6, 3, 4, 5, 6, 7, 8, 9 and 10 will survive the expiration or termination of this Agreement.


10.General
10.1 Assignment.
Licensee may not assign the Agreement, in whole or in part, without SAMSUNG's prior written consent, and any attempt to do so without such consent shall be void. SAMSUNG may assign this Agreement without the Licensee's consent. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.

10.2 Relationship of Between Licensee and SAMSUNG.
This Agreement will not be construed as creating an agency, partnership, joint venture, fiduciary duty, or any other form of legal relationship between Licensee and SAMSUNG, and Licensee must not represent the existence of any such relationship, whether expressly, by implication or otherwise.

10.3 Third Party Rights
This Agreement is not for the benefit of any third parties.


10.4 Development by SAMSUNG
Nothing in this Agreement limits or otherwise affects SAMSUNG's right to acquire, develop, license, market, promote, or distribute any product or technology that performs the same or similar functions as the  Watch Faces or any other products or technologies that Licensee develops, markets, promotes or distributes, or that otherwise competes with the  Watch Faces or such products or technologies.


10.5 Notices.
Any notices or other communication made pursuant to this Agreement must be in writing and will be deemed to have been fully given or made when: (a) personally delivered; or (b) three (3) days after being mailed via commercially reputable overnight delivery service, to the following address:


SAMSUNG:
(Maetandong) 129, Samsung-ro
Yeongtong-gu,Suwon-si, Gyeonggi-do, 16677, Republic of Korea


Licensee agrees to receive notices and other communications to be made to Licensee pursuant to this Agreement by email and Licensee agrees that any notices that SAMSUNG sends to Licensee by email will satisfy any legal communication requirements.
A party may change its email or mailing address by giving the other party written notice in accordance with this Clause.


10.6 No Waiver.
Failure by SAMSUNG to insist upon strict performance of any of the provisions contained in this Agreement shall in no way constitute a waiver of SAMSUNG's rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or the right to take action in respect of a subsequent default by Licensee in the performance or compliance with any of the terms and conditions set forth in this Agreement.


10.7 Remedies.
Licensee acknowledges that any disclosure, use or misappropriation of Confidential Information of SAMSUNG in violation of this Agreement would cause SAMSUNG irreparable harm for which there may be no adequate remedy at law. Accordingly, Licensee agrees that SAMSUNG shall have the right to apply to any court of competent jurisdiction for injunctive relief and specific performance, without prejudice to any remedies otherwise available to SAMSUNG at law or in equity.


10.8 Governing Law; Venue.
This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea, without regard to any conflict-of-laws rules. All disputes, controversies or claims between the parties arising out of or in connection with this Agreement (including its existence, validity or termination) shall be finally resolved by arbitration to be held in Seoul, Korea and conducted in English under the Rules of Arbitration of the International Chamber of Commerce; provided, however, that each party may enforce its or its affiliates' intellectual property rights in any court of competent jurisdiction, including but not limited to equitable relief. The arbitral award shall be final and binding on the parties. Except to the extent entry of judgment and any subsequent enforcement may require disclosure, all matters relating to the arbitration, including the award, shall be held in confidence.


10.9 Conflict.
Some software components of TOOL incorporate source code covered under Apache License and the GNU General Public License (GPL). In case of any conflict between the terms of this Agreement and the terms of Apache License and/or the GPL, respectively, the terms of Apache License and/or GPL shall prevail related to such software components of TOOL.


