SAMSUNG SDS AMERICA, INC.
GENERAL TERMS AND CONDITIONS FOR SOFTWARE


  1. 1. DEFINITIONS
  2. 2. General.
  3. 3. RIGHTS GRANTED
  4. 4. RESTRICTIONS
  5. 5. TECHNICAL SUPPORT
  6. 6. DELIVERY AND INSTALLATION
  7. 7. EXPIRATION/TERMINATION
  8. 8. REGISTRATION
  9. 9. MARKS
  10. 10. OPEN SOURCE SOFTWARE SEPARATELY LICENSED THIRD PARTY TECHNOLOGY
  11. 11. OWNERSHIP
  12. 12. SAFE USE
  13. 13. EXPORT
  14. 14. AUDIT
  15. 15. U.S. GOVERNMENT RESTRICTED RIGHTS
  16. 16. LIMITATION OF LIABILITY
  17. 17. WARRANTIES, DISCLAIMERS
  18. 18. SOFTWARE IP INFRINGEMENT INDEMNIFICATION
  19. 19. SOFTWARE INDEMNIFICATION
  20. 20. NONDISCLOSURE
  21. 21. TERM AND TERMINATION
  22. 22. ORDER OF PRECEDENCE
  23. 23. MISCELLANEOUS

Access and Use of the Samsung SDS America, Inc. (“Samsung SDS”) Software is subject to compliance with the following terms and conditions (the “Terms”):

1. DEFINITIONS

1.1 “Marks” refers to all trademarks, service marks, trade names, logos, or other words or symbols, identifying the Software or Samsung SDS’s business.
1.2 “SEA Terms” refers the commercial document between Customer and Samsung Electronics America, Inc. that contains information specific to the transaction (e.g., Software description, quantity, delivery dates) for provision of access to the Software.
1.3 “Separate Terms” refers to separate license terms that are specified in the Software Documentation, readmes or notice files and that apply to Separately Licensed Third Party Technology.
1.4 “Separately Licensed Third Party Technology” refers to third party technology that is licensed under Separate Terms and not under the terms of the Terms.
1.5 “Software” refers to (i) the software owned or distributed by Samsung SDS that Customer has ordered under the SEA Terms, (ii) Software Documentation and (iii) any Software updates acquired through Technical Support. The detailed description of Software including, but not limited to, features and requirements and the license definitions and rules related to licensing the Software can be accessed at https://www.samsungsds.com/ or can be written in relevant documentation provided by Samsung SDS
1.6 “Software Documentation” refers to the Software user manual and Software installation manuals, in human- or machine-readable format, in any medium. Software Documentation may be delivered with the Software and/or may be accessed at https://www.sdsasupport.com. Software Documentation shall include any updated Software Documentation that Samsung SDS provides with updates.
1.7 Taxes” means any tax, levy or similar governmental charge that may be assessed by any jurisdiction on any amounts due under this Agreement, including tariffs, customs fees, VAT, GST, consumption, sales and use taxes.
1.8 “Technical Support” consists of technical support services for the Software and is described in the Terms and the Software Technical Support Policy which can be found at https://www.sdsasupport.com or can be written in relevant documentation provided by Samsung SDS.

2.GENERAL

The Terms govern use of the Software and form a separate and independent contract for Customer’s access to the Software with Samsung SDS America, Inc. It is expressly agreed that the terms of the Terms in any Customer purchase order, Customer procurement internet portal, or any other similar non-Samsung SDS document (including the SEA Terms), and no terms included in any such purchase order, portal or other non-Samsung SDS document shall apply to the Software ordered. The Customer may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by authorized representatives of Customer and of Samsung SDS.

3.RIGHTS GRANTED

3.1 Subject to Customer’s compliance with the Terms and the Software Documentation, Samsung SDS hereby grants to Customer, and Customer hereby accepts, a non-exclusive, non-assignable, non-transferable, personal, royalty free, limited right, without right of sublicense, to use the Software for up to the number of licenses and for the license type (term) specified in the SEA Terms, solely for Customer’s own internal business operations.
3.2 The license granted to Customer for the Software is subject to the applicable licensing metrics, licensing rules and license type (term) designation set forth in the SEA Terms. No other legal or commercial terms of the SEA Terms are applicable to the Terms.
3.3 Customer may only make one (1) copy of the Software for each Software license, and its Software media, licensed by Customer under the Terms for use by such Customer. Subject to the terms and conditions of the Terms, Customer may use, copy and distribute Software Documentation intended for distribution to Customer’s end users in connection with its permitted use of the Software.
3.4The Software is licensed solely in machine-readable object code format. All rights not expressly granted to Customer are retained by Samsung SDS.

4.RESTRICTIONS

4.1 Customer may only use the Software as expressly permitted under the Terms, and in compliance with the Software Documentation. Customer may not:   4.1.1 remove or modify any Software markings or any notice of Samsung SDS’s or its licensors’ proprietary rights;
  4.1.2 make the Software available in any manner to any third party for use in the third party’s business operations (unless such access is expressly permitted for the specific Software license Customer has acquired);
  4.1.3 use the Software in combination with any hardware, programs, or data unless Customer has obtained or otherwise possess sufficient rights with respect to such hardware, programs, or data to enable such combination;
  4.1.4 cause or permit reverse engineering (unless required by law for interoperability), disassembly or decompilation of the Software (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by Software); or
  4.1.5 disclose results of any Software benchmark tests without Samsung SDS’s prior written consent.
4.2 Unless otherwise expressly set forth in the Terms, Customer will not:
  (i) use the Software on a time-sharing, service bureau, remote job entry, or other multiple user basis;
  (ii) distribute, provide or otherwise make the Software available to any third party, in whole or in part, through any medium or process; or
  (iii) if applicable, install the Software on a network or other multi-user computer system in a manner that would make the Software available to a number of persons in excess of the permitted number of end users.

5.TECHNICAL SUPPORT

5.1 Technical Support may be provided to Customer by Samsung SDS for the Software. Technical Support also includes Software maintenance to the extent set forth in the Technical Support policies. Customer agrees to cooperate with Samsung SDS and provide the access, resources, materials, personnel, information and consents that Samsung SDS may require in order to perform the Technical Support. Customer may access the current version of the Technical Support policies at https://www.sdsasupport.com The Technical Support policies are incorporated by reference into the Terms and are subject to change at Samsung SDS’s discretion, however, Samsung SDS Technical Support policy changes will not result in a material reduction in the level of Technical Support services provided for supported Software during the period for which fees for Technical Support have been paid. A copy of the current version of the Technical Support policy is attached to the Terms (Software Technical Support Policy). The Software Technical Support Policy may be updated by Samsung SDS from time to time.
5.2 Technical Support is effective upon the Software license Commencement Date unless otherwise stated in Customer’s SEA Terms.
5.3 If Customer decides to purchase Technical Support for any Software within a Software set licensed by Customer described under SEA Terms for a specific order, Customer is required to purchase Technical Support at the same level for all Software within that Software set. If Customer decides not to purchase Technical Support for a Software, Customer may not update such unsupported Software with updates or new versions of the Software that are provided by Samsung SDS for the Software for which Technical Support has been purchased.

6.DELIVERY AND INSTALLATION

6.1 Customer is responsible for installation of the Software.
6.2If ordered, Samsung SDS will deliver the tangible media to the delivery address specified on the applicable SEA Terms. Customer agrees to pay applicable media and shipping charges.

7.EXPIRATION/TERMINATION

The Software license shall commence on the Software license Commencement Date set forth in the SEA Terms and shall expire at the end of the license type (term) set forth in the SEA Terms unless terminated earlier in accordance with the express terms of the Terms. In addition to a party’s right to terminate under Section 7 of the Terms, Samsung SDS may terminate the Terms in the event that Customer breaches Section 4 (Restrictions) or 11 (Ownership) of the Terms. Notwithstanding anything to the contrary contained herein, Samsung SDS shall be under no obligation to authorize use of the Software by Customer unless and until the associated license fee is paid by Customer.
7.2 Upon expiration or termination of the Terms, Customer will purge from its computer systems, storage media, and other files and, at Samsung SDS’s option, destroy or deliver to Samsung SDS or its designee, all copies of the Software within Customer’s possession or control, except to the extent that retention of any such materials is required by law. In the event that Customer retains any such materials under this Subsection 7.2, then such materials shall be considered Samsung SDS’s Confidential Information.
7.3 Section 11 (Ownership ), Section 16 (Limitation of Liability, Section 17 (Warranties, Disclaimers), Section 18 (Software IP Infringement Indemnity), and Section 19 (Software Indemnification)) of the Terms shall survive termination or expiration of the Terms.

8. REGISTRATION

Certain Software will require Customer to register and provide certain data about Customer. In consideration of use of such Software, in registering and providing such data, Customer represents and warrants that: (a) the information about Customer is true, accurate, current, and complete (apart from optional items) as required by the Software registration forms (“Registration Data”) and (b) Customer will maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If Customer provides any information that is untrue, inaccurate, not current or incomplete, or Samsung SDS has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Samsung SDS has the right to suspend or terminate Customer’s account and refuse any and all current or future use of Software. All Software Registration Data become the exclusive property of Samsung SDS and Samsung SDS Co., Ltd. Samsung SDS.

9.MARKS

As between Samsung SDS and Customer, all Marks are and will remain the exclusive property of Samsung SDS or its licensors, whether or not specifically recognized or perfected under the laws of the territory. Unless otherwise specifically provided under the Terms, Customer shall not acquire any right in the Marks. Customer will not register, directly or indirectly, any trademark, service mark, trade name, company name, Internet domain name, or other proprietary or commercial right, that is identical or confusingly similar to a Mark, or constitutes a translation of a Mark. Customer will not use the Marks for any purpose without Samsung SDS’s prior written consent.

10. OPEN SOURCE SOFTWARE SEPARATELY LICENSED THIRD PARTY TECHNOLOGY

10.1 Software may contain or be distributed with third party software covered by an open source software license (“Open Source Software”) covered by a different license. The Terms applies exclusively to Customer’s access to, and use of Software excluding the portion containing Open Source Software and does not alter in any way the terms and conditions of the respective Open Source Software.
10.2 The Software may be provided to Customer with Separately Licensed Third Party Technology and the Software may not function, or function fully, without such Separately Licensed Third Party Technology. To the extent that Separately Licensed Third Party Technology is provided along with the Software, Samsung SDS shall provide a notice to Customer via either the Software Documentation readme file accompanying the Software files, or notice files accompanying the Software files. Separately Licensed Third Party Technology is licensed to Customer under the Separate Terms. The Separate Terms are specified in the aforementioned Software Documentation, readme files or notice files. Customer’s use of the Separately Licensed Third Party Technology is governed solely by the Separate Terms and is not restricted in any way by the Terms. For clarity, any third party technology provided by Samsung SDS to Customer that is not Separately Licensed Third Party Technology shall be deemed part of the Software and is licensed to Customer under the terms of the Terms.

11.OWNERSHIP

As between Samsung SDS and Customer, all rights, title and interest in and to the Software, including patents, patent rights, copyrights, trade secrets, and other proprietary, industrial, or intellectual property rights, are and will remain the exclusive property of Samsung SDS or its licensors, whether or not specifically recognized or perfected under applicable law. Third party licensors shall have the rights to protect their own proprietary rights to the extent included in the Software in the event of any infringement. Customer’s Software license confers no title or ownership and is not a sale of any rights in the Software. Customer will not acquire any right in the Software, except the limited rights specified in the Terms. Samsung SDS or its licensor will own all rights in any copy, translation, modification, adaptation, or derivative work of the Software, including any improvement or development thereof. Samsung SDS shall have a royalty-free, worldwide, perpetual license to use or incorporate into the Software any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or Customer’s customers. If, by operation of law or otherwise, Customer is deemed to own any rights in the Software, as a derivative work or otherwise (other than the limited rights specified in the Terms), Customer hereby agrees to assign, and upon the creation of any such rights shall be deemed to assign, all such rights, including the right to adapt or create derivative works and the right to exploit such derivative works, to Samsung SDS or its licensor on an exclusive, perpetual, irrevocable, worldwide, and royalty-free basis, without the right to claim or receive any additional consideration. If Customer or any of its employees is deemed under applicable law to retain any rights in the development of the Software, including any economic or moral rights, Customer grants, and will cause its employees to grant, to Samsung SDS or its licensor, the exclusive, perpetual, irrevocable, worldwide, and royalty-free license to use, modify, and market the Software and any derivative works based thereon, and in the case of moral rights, Customer waives, and covenants that it shall have its employees waive, all such moral rights. At Samsung SDS’s request, Customer will execute, or obtain the execution of, any instrument that may be appropriate to assign these rights to Samsung SDS or its licensors or perfect these rights in Samsung SDS’s or its licensors’ name. All rights (including all intellectual property rights) to and/or with respect to the Software not expressly licensed by Samsung SDS hereunder, are expressly and exclusively retained by Samsung SDS and its licensors.

12. SAFE USE

Software and Technical Support are not designed for or specifically intended for use in nuclear facilities or other hazardous applications. Customer agrees that it is Customer’s responsibility to ensure safe use of Software and Technical Support in such applications. Software and Technical Support are not designed, intended or licensed for use in hazardous environments requiring fail-safe controls. SAMSUNG SDS SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES.

13. EXPORT

Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Software. Customer agrees that such export laws govern Customer’s use of the Software (including technical data) provided under the Terms, and Customer agrees to comply with all such export laws and regulations (including “deemed export” and “deemed re-export” regulations). Customer agrees that no data, information, Software (or direct product thereof) will be exported, directly or indirectly, in violation of these laws, or will be used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation, or development of missile technology.

14. AUDIT

Customer agrees that Samsung SDS has the right to audit (electronic or otherwise) Customer’s use of Software and Technical Support. As part of any such audit, Samsung SDS or its authorized representative will have the right, on forty-five (45) days’ prior notice to Customer, to inspect Customer’s records, systems and facilities, including machine IDs, serial numbers and related information, to verify Customer’s use of Software and/or Technical Support. Additionally, within forty-five (45) days of the audit request, Customer will provide to Samsung SDS all records and information requested by Samsung SDS in order to verify Customer’s use of Software and/or Technical Support. Customer will provide full cooperation to enable any such audit. Samsung SDS may use an independent auditor to assist with such verification, provided Samsung SDS has a written confidentiality agreement in place with such auditor. If Samsung SDS determines that Customer’s use of Software and/or Technical Support is not in conformity with the Terms, Customer will immediately pay for valid license(s) to bring Customer’s use of Software and/or Technical Support into compliance and pay the reasonable costs of the audit. Customer agrees to pay Samsung Electronics America, Inc. within thirty (30) days of written notification any fees applicable to Customer’s use of the Software in excess of Customer’s license rights under the Terms. In addition to such payment rights, Samsung SDS reserves the right to seek any other remedies available at law or in equity. Customer agrees to be responsible for any costs incurred with the audit.

15. U.S. GOVERNMENT RESTRICTED RIGHTS

15.1 U.S. Government End Users Only. This Subsection (U.S. Government End User only) shall apply only to U.S. Government end users: Customer acknowledges that the Software was developed exclusively at the private expense of Samsung SDS and/or its predecessors in interest. Elements of the Software constitute “commercial computer software,” as that term is defined in the Federal Acquisition Regulations (“FAR”) Part 2.101. All such commercial computer software is licensed to the U.S. Government in accordance with the provisions of FAR Part 227.7202-3(a), and the United States Government acknowledges that it shall only receive rights with respect to such commercial computer software as expressly set forth in the License. All non-commercial technical data and computer software elements of the Software which do not constitute “commercial computer software” are licensed to the United States Government with “limited rights” and/or “restricted rights” (as applicable), as those terms are defined in FAR Part 52.227-14(a) or the Department of Defense FAR Supplement (“DFARS”) Part 252.227-7013(a)(13) and DFARS Part 252.227-7014(a)(14) respectively, as applicable. All duplication, disclosure and other use by the U.S. Government of such noncommercial technical data and/or computer software is subject to restrictions set forth in FAR Part 52.227-14(g)(3) and FAR Part 52.227-14(g)(4), or DFARS Part 252.227-7013(b)(3) and DFARS Part 252.227-7014(b)(3), as applicable.
15.2 For All Other End Users. This Subsection (For All Other End Users) shall apply only to non-U.S. Government end users. Customer agrees that it shall reproduce, and shall cause its affiliates (solely to the extent Customer is expressly allowed to so distribute the Software to such affiliates under the Terms) and its and their sublicensees (solely to the extent Customer is expressly allowed to so distribute the Software to such sublicensees under the Terms) (solely to the extent Customer’s affiliates are expressly allowed to so distribute the Software to their sublicensees under the Terms) to reproduce, all copies of the Software (or any portion thereof) with all data rights markings provided by Samsung SDS in accordance with FAR Part 52.227-14(g)(3) and FAR Part 52.227-14(g)(4), or DFARS Part 252.227-7013(f)(3), as applicable.

16. LIMITATION OF LIABILITY

16.1 EXCEPT FOR SAMSUNG SDS’S OBLIGATIONS UNDER SECTION 18 (SOFTWARE IP INFRINGEMENT INDEMNIFICATION) OF THE TERMS, OR BREACH OF SECTION 20 (NONDISCLOSURE) OF THE TERMS, IN NO EVENT SHALL SAMSUNG SDS, ITS AFFILIATES, OR ITS SUPPLIERS, BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, PROFITS, DATA, OR GOODWILL, ARISING OUT OF OR IN CONNECTION WITH THE TERMS, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN.
16.2 EXCEPT FOR SAMSUNG SDS’S OBLIGATIONS UNDER SECTION 18 (SOFTWARE IP INFRINGEMENT INDEMNIFICATION) OF THE TERMS, OR BREACH OF SECTION 20 (NONDISCLOSURE) OF THE TERMS, IN NO EVENT SHALL SAMSUNG SDS’S CUMULATIVE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE TERMS EXCEED AN AMOUNT EQUAL TO THE LOWER OF (i) TEN PERCENT (10%) OF THE TOTAL AMOUNTS CUSTOMER HAS PAID SAMSUNG ELECTRONICS AMERICA, INC. RELATED TO ACCESS TO SOFTWARE PROVIDED UNDER THE TERMS OR (ii) THE TOTAL AMOUNTS CUSTOMER HAS PAID SAMSUNG ELECTRONICS AMERICA, INC, RELATED TO ACCESS TO SOFTWARE PORIVIDE UNDER THE TERMS IN THE SIX (6) MONTHS PRECEDING THE ARISING OF THE CAUSE OF ACTION. NOTWITHSTANDING THE FOREGOING LIMITATION IN THIS SECTION 16.2, IN THE CASE OF SAMSUMG SDS’S LIABILITY, IF SUCH LIABILITY RESULTS FROM CUSTOMER’S USE OF THE SOFTWARE OR TECHNICAL SUPPORT, SUCH LIABILITY SHALL BE LIMITED TO THE FEES CUSTOMER PAID SAMSUNG ELECTRONICS AMERICA, INC, FOR THE DEFICIENT SOFTWARE OR TECHNICAL SUPPORT GIVING RISE TO THE LIABILITY.
16.3 THIS SECTION (LIMITATION OF LIABILITY) WILL NOT APPLY ONLY WHEN AND TO THE EXTENT THAT APPLICABLE LAW SPECIFICALLY REQUIRES LIABILITY DESPITE THE FOREGOING EXCLUSION AND LIMITATIONS.

17. WARRANTIES, DISCLAIMERS

17.1 SAMSUNG SDS DOES NOT GUARANTEE THAT THE SOFTWARE WILL MEET CUSTOMER’S REQUIREMENTS, PERFORM ERROR-FREE OR UNINTERRUPTED, OR THAT SAMSUNG SDS WILL CORRECT ALL SOFTWARE ERRORS.
17.2 THE SOFTWARE AND TECHNICAL SUPPORT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE AND ALL WARRANTIES, REPRESENTATIONS, AND GUARANTEES WITH RESPECT TO THE SOFTWARE, TECHNICAL SUPPORT, OR OTHERWISE ARE HEREBY VOID, OVERRIDDEN, EXCLUDED, AND DISCLAIMED.

18. SOFTWARE IP INFRINGEMENT INDEMNIFICATION

18.1 Subject to Subsections 18.2, 18.3 and 18.4 below, if a third party makes a claim against Customer alleging that the unmodified Software infringes a third party’s intellectual property rights, Samsung SDS, at Samsung SDS’s sole cost and expense, will defend Customer against the claim and indemnify Customer from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by Samsung SDS, if the Customer does the following:
  a.notifies the Samsung SDS promptly in writing, not later than ten (10) days after the Customer receives notice of the claim (or sooner if required by applicable law);
  b.gives Samsung SDS sole control of the defense and any settlement negotiations or compromise; and
  c.gives Samsung SDS the information, authority and assistance Samsung SDS needs, at Samsung SDS’s expense, to defend against or settle the claim.
18.2 If Samsung SDS believes or it is determined that any of the Software may have violated a third party’s intellectual property rights, Samsung SDS, at its option, may choose to either modify the Software to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use, or if these alternatives are not commercially practicable, Samsung SDS may terminate these Terms and the license for, and require Customer to return of, the applicable Software and refund the license fees Customer has paid to Samsung Electronics America, Inc. for the affected Software (prorated based on a three (3) year useful life) and unused, prepaid Technical Support fees paid to Samsung Electronics America, Inc.
18.3 In the event that the Software is Separately Licensed Third Party Technology and the associated Separate Terms do not allow termination of the license, in lieu of ending the license for the Software, Samsung SDS may end the license for, and require return of, the Software associated with that Separately Licensed Third Party Technology and shall refund any Software license fees Customer may have paid to Samsung SDS for the Software license and any unused, prepaid Technical Support fees Customer has paid to Samsung SDS.
18.4 Samsung SDS will not indemnify not defend Customer if the Customer
  (i) makes a correction or modification of the Software not provided by Samsung SDS or otherwise alters or uses it outside the scope of use identified in the Software Documentation;
  (ii) uses a version of Software which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of Software which was provided to the Customer;
  (iii) fails to properly install an update;
  (iv) continues to use the applicable Software after the end of the license to use that Software; or
  (v) combines the Software with items not provided by Samsung SDS or approved for combination with the Software in the Software Documentation. Samsung SDS will not indemnify nor defend Customer to the extent that an infringement claim is based upon any information, design, specification, instruction, software, data, or material not furnished by Samsung SDS. Samsung SDS will not indemnify nor defend Customer for any portion of an infringement claim that is based upon the combination of any Software with any products or services not provided by Samsung SDS. Solely with respect to Separately Licensed Third Party Technology that is part of or is required to use a Software and that is used:
    (a) in unmodified form;
  (b) as part of or as required to use a Software; and
  (c) in accordance with the license grant for the relevant Software and all other terms and conditions of the Terms, Samsung SDS will indemnify Customer for infringement claims for Separately Licensed Third Party Technology to the same extent as Samsung SDS is required to provide infringement indemnification for the Software under the terms of the Terms. Samsung SDS will not indemnify nor defend Customer for infringement caused by Customer’s actions against any third party if the Software as delivered to Customer and used in accordance with the terms of the Terms would not otherwise infringe any third party intellectual property rights.
18.5 This Section (Software IP Infringement Indemnification) provides Customer’s exclusive remedy and Samsung SDS’s sole liability in connection with any Software infringement claims.

19. SOFTWARE INDEMNIFICATION

Customer shall, at its sole expense, defend, indemnify, and hold harmless Samsung SDS and its licensors from and against any and all claims, proceedings, damages, injuries, liabilities, losses, costs, and expenses (including attorneys’ fees and litigation expenses) that Samsung SDS or its licensors may incur relating to or arising from
  (i) any modification of or addition to the Software not provided or approved in writing by Samsung SDS, or
  (ii) any infringement, misappropriation, or other claim that arises from the combination of the Software with any hardware, software or data not authorized in writing by Samsung SDS, provided that such claim would not have arisen from the use of the Software alone.

20. NONDISCLOSURE

20.1 If a party discloses its Confidential Information to the other party under the Terms, for purposes of this Section (Nondisclosure), the disclosing party shall be referred to as the “Disclosing Party” and the receiving party shall be referred to as the “Receiving Party”. “Confidential Information” shall mean the Disclosing Party’s confidential information, including, but not limited to, information concerning the Disclosing Party’s products, services, sales, performance, plans, strategies, customers, finances, human resources, processes, management, contracts, project documentation, software and hardware, technical data, drawings, schematics, know-how, idea, inventions (whether patentable or not), and the same information types of its parent and/or affiliated companies, and subsidiaries, as may be appropriate, and any third party proprietary information given to the Receiving Party by or through the Disclosing Party that would otherwise fall under this definition. Confidential Information may be disclosed in writing, orally or in other tangible or intangible form, and must be either marked, otherwise identified as confidential or proprietary, or be information which ought to be considered confidential or proprietary based on its nature or from the circumstances surrounding its creation or disclosure. The Products, any documents, Product updates, or other materials or documents provided to Customer pursuant to the Terms and the Terms and its contents, shall be considered Samsung SDS’s Confidential Information. Confidential Information covered by this Section (Nondisclosure) shall also include Confidential Information belonging to the Disclosing Party but disclosed by the Disclosing Party’s parent, affiliated companies, employees, consultants, and agents (collectively, “Representatives”) on behalf of the Disclosing Party.
20.2 The Receiving Party shall hold and keep in confidence, and protect from unauthorized disclosure or use, all Confidential Information of the Disclosing Party, using the same means it uses to hold in confidence, and protect, its own Confidential Information, but in no event using less than reasonable care. The Receiving Party shall make use of the Confidential Information only for the purpose of performing its obligations under the Terms. The Receiving Party shall not disclose Confidential Information, whether directly or indirectly, to any third party without prior written approval of the Disclosing Party. However, the Receiving Party may grant access and disclose the Confidential Information of the Disclosing Party only to those of its Representatives on a “need to know” basis provided each such Representative is subject to written obligations of confidentiality, non-disclosure, and use restrictions, substantially as restrictive than those contained herein, and that are applicable, by their own terms, to the Disclosing Party’s Confidential Information that is so disclosed to any such Representatives. The Receiving Party shall be liable for all acts and omissions of such Representatives. Each Receiving Party shall be responsible for any breach of the terms of the Terms by any of its Representatives and shall take all commercially reasonable measures (including, but not limited to, court proceedings in the appropriate circumstances) to restrain such Representatives from unauthorized disclosure or use of the Confidential Information of the Disclosing Party.
20.3 Confidential Information shall not include any information which:
  a.is made public by the Disclosing Party, or is in the public domain otherwise than as a result of a breach of the Terms;
  b.was in the possession of the Receiving Party without an obligation of confidentiality before its receipt of the Confidential Information whether directly or indirectly from the Disclosing Party, as evidenced by the Receiving Party’s written records;
  c.is disclosed to the Receiving Party in good faith by a third party who had a lawful right to make such disclosure without breach of any confidentiality obligation; or
d.is independently developed by Receiving Party without use of the Confidential Information as evidenced by the Receiving Party’s written records.
20.4 Upon request by and at the election of the Disclosing Party at any time, the Receiving Party shall within fifteen (15) days from the date of such request return or destroy all Confidential Information of the Disclosing Party and all documents containing any such Confidential Information and any and all copies or extracts thereof. The Receiving Party shall also, at the same time, remove and delete all electronic copies of such Confidential Information from all storage media and furnish written verification of complete removal and deletion to the Disclosing Party.
20.5 The Receiving Party agrees and acknowledges that the Confidential Information of the Disclosing Party constitutes valuable proprietary information for which there may be no adequate remedy at law for any breach of the obligation under this Section (Nondisclosure), which breach may result in irreparable harm to the Disclosing Party. The Receiving Party therefore agrees that upon any such breach or threatened breach of the provisions of the Terms, the Disclosing Party shall be entitled, in addition to any other remedies it may have at law or in equity, to obtain injunctive, prohibitory or other urgent relief against such breach or threatened breach and the Receiving Party and its Representatives shall not plead as a defense to such action by the Disclosing Party that the Disclosing Party has an adequate remedy or other remedies at law.
20.6 Notwithstanding anything else in this Section (Nondisclosure) and to the minimum extent legally required, the Receiving Party may disclose Confidential Information to the extent required by law, or by a valid order of any governmental or applicable regulatory body, provided that the Receiving Party shall promptly provide the Disclosing Party with written notice of such order prior to such disclosure (unless prohibited by such law or order) so as to afford the Disclosing Party reasonable opportunity to oppose such disclosure, or obtain a protective order, and the Receiving party shall provide reasonable assistance to the Disclosing Party in connection with the Disclosing Party’s efforts to obtain such a disclosure limitation or protective order. Confidential Information disclosed pursuant to this Subsection shall itself be considered Confidential Information.

21. TERM AND TERMINATION

21.1 The Software license shall commence on the Software license Commencement Date set forth in the SEA Terms and shall expire at the end of the license type (term) set forth in the SEA Terms unless terminated earlier in accordance with the express terms of the Terms.
21.2 Upon expiration or termination of the Terms, Customer will purge from its computer systems, storage media, and other files and, at Samsung SDS’s option, destroy or deliver to Samsung SDS or its designee, all copies of the Software within Customer’s possession or control, except to the extent that retention of any such materials is required by law. In the event that Customer retains any such materials under this Subsection 21.2, then such materials shall be considered Samsung SDS’s Confidential Information.
21.3 Either party will have the right to terminate the Terms if the other party (i) breaches a material term of the Terms and fails to correct the breach within thirty (30) days of written notice that describes the breach in reasonable detail, or (ii) ceases to conduct business in the normal course, is declared insolvent, undergoes any procedure for the suspension of payment, makes a general assignment for the benefit of creditors, or a petition for bankruptcy, reorganization, dissolution, or liquidation is filed by or against it.
21.4 Samsung SDS may terminate the Terms upon written notice to Customer in the event that Customer breaches Section 20 (Nondisclosure) of the Terms or for such other reason as may be set forth in a Schedule.
21.5 In addition to a party’s right to terminate under Section 21.3 Samsung SDS may terminate the Terms in the event that Customer breaches Section or 4 (Restrictions) or Section 11 (Ownership) of the Terms. Notwithstanding anything to the contrary contained herein, Samsung SDS shall be under no obligation to authorize use of the Software by Customer unless and until the associated license fee is paid by Customer.
21.6 Upon the expiration or termination of the Terms for any reason, all rights granted to Customer hereunder will immediately cease, and Customer will promptly comply with the termination obligations specified below and otherwise cooperate with Samsung SDS to terminate relations in an orderly manner:
  a.Customer will, at Samsung SDS’s option, destroy or deliver to Samsung SDS or its designee all items within Customer’s possession or control that contain any Samsung SDS Confidential Information or bear a Mark associated with the license granted hereunder, except to the extent that retention of any such materials is required by law; and
  b,Customer will, at Samsung SDS’s option, deliver to Samsung SDS a certificate, executed by an officer of Customer, on which Samsung SDS may rely, which certifies that Customer has complied with all of its termination obligations set forth in the Terms.
21.7 Provisions that survive termination or expiration of the Terms include Section 20 (Nondisclosure) of the Terms and others which by their nature are intended to survive.

22. ORDER OF PRECEDENCE

It is expressly agreed that the Terms shall supersede the terms in any Customer purchase order, Customer procurement internet portal, or any other similar non-Samsung SDS document, and no terms included in any such purchase order, portal or other non-Samsung SDS document shall apply to the Products or Services ordered. The Terms may not be modified and the rights and restrictions may not be altered or waived except in a writing signed by authorized representatives of Customer and of Samsung SDS.

23. MISCELLANEOUS

23.1 Force Majeure. Neither party shall be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic, electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions (including the denial or cancellation of any export, import or other license and permit); or other events outside the reasonable control of the obligated party. Both parties will use reasonable efforts to mitigate the effect of a force majeure event. If such event continues for more than thirty (30) days, either party may cancel the unperformed Terms upon written notice. This Section (Force Majeure) does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures or Customer’s obligation to pay for the Software ordered or delivered.
23.2 Language. Customer agrees that the English language has been elected to express the terms of the Terms and the English version shall be deemed to be the original. The English language the Terms may be translated into other language for purpose of convenience, but in the event of a dispute between the English version and the translated version, the English version shall prevail.
23.3 Governing Law And Jurisdiction. The Terms is governed by the substantive and procedural laws of New Jersey and Customer and Samsung SDS agree to submit to the exclusive jurisdiction of, and venue in, the courts in New Jersey in any dispute arising out of or relating to the Terms.
23.4 Legal Notices. All notices and consents required to be given or made by the parties shall be deemed properly made if sent by nationally recognized (recognized in the country of the sending party) overnight courier or certified mail (return receipt requested) to the addresses set forth below or such other address as a party may designate to the other party in writing.

If to Samsung SDS:
Samsung SDS America, Inc. 100 Challenger Road, 6th FloorRidgefield Park, NJ 07660
Attn: CFO

with a copy to:
Legal Department 100 Challenger Road, 6th Floor Ridgefield Park, NJ 07660
Attn: General Counsel

If to Customer: at the address submitted by Customer electronically with acceptance of the Terms Any non-legal notice required under the Terms must be provided to the other party in writing.
23.5 Assignment. Customer may not assign, delegate, sub-contract, or otherwise transfer the Terms, or any rights or obligations under it, or give or transfer the Software or an interest in them to another individual or entity without Samsung SDS’s prior written approval. Any attempt to do so without Samsung SDS’s prior written approval shall be void.