Samsung Electronics America , a company existing under the laws of New York , with its registered office at 105 Challenger Road, Ridgefield Park, NJ 07660 (collectively “Samsung”) on the other part.
WHEREAS, Samsung intends to provide electronic documents for the sole benefit of Samsung (the “Purpose”). WHEREAS, Authorized User (collectively “Company or Recipient”) may have access to certain Confidential Information of Samsung, and Samsung requires that all such Confidential Information be subject to the terms and conditions of this Agreement.
NOW THEREFORE, in consideration of these premises and for other good and valuable consideration, receipt of which is hereby acknowledged, the parties hereto agree as follows:
- Confidential Information. “Confidential Information” includes all business, financial, contractual, marketing and/or technical information, including without limitation, RS232C, IR code, IP controls and all CAD files, in whatever form embodied, which has been or may be disclosed, or to which access is provided, by Samsung and/or its Affiliates (“Discloser”) to Company (“Recipient”) in connection with the Purpose.
For the purposes of this Agreement, “Affiliate” means an entity that, directly or indirectly, controls, is controlled by, or is under common control with Discloser to this Agreement, but only for so long as such control exists, and where “control” shall mean ownership of more than 50% of the stock or other equity interests entitled to vote for the election of directors or an equivalent governing body.
- Nondisclosure and Nonuse Obligations. Recipient hereby promises and agrees to receive and hold Confidential Information in strict confidence and trust, and to protect and safeguard Confidential Information against unauthorized use or disclosure using at least the same degree of care as Recipient accords to its own confidential information of like importance, but in no case less than reasonable care. Without limiting the generality of the foregoing, Recipient further promises and agrees:
(a) not to, directly or indirectly, in any way, disclose, make accessible, reveal, report, publish, disseminate or transfer any Confidential Information to any third party;
(b) not to use any Confidential Information in any manner whatsoever, except in furtherance of the Purpose in accordance with this Agreement;
(c) to restrict access to Confidential Information to those of its officers, directors and employees who have a legitimate need-to-know to carry out the Purpose and who are obligated to protect such Confidential Information pursuant to terms and conditions no less protective of Discloser than those contained in this Agreement;
(d) not to reproduce or copy Confidential Information, without first obtaining express written permission from Samsung on a case-by-case basis; and
(e) to comply with any other reasonable security measures requested by Discloser, and to promptly notify Discloser of any unauthorized use or disclosure of Confidential Information and assist such Discloser in remedying the same.
Furthermore, the existence of any business negotiations, discussions or agreements in progress between the parties shall be kept confidential and shall not be disclosed without written approval of all the parties. For the purposes of this Agreement, Recipient shall not disclose Confidential Information to any other division, department, group, company or unit other than authorized by Samsung.
- Exclusions from Obligations. Confidential Information does not include, and the obligations under Section 2 shall not apply to, information that such Recipient can evidence: (a) is, or later becomes, generally available to the public through no act or default of Recipient; (b) is rightfully in its possession prior to disclosure to Recipient by Discloser; or (c) is received in good faith by Recipient from a third party, free of any obligation of confidentiality. Confidential Information shall not be deemed to be generally available to the public merely because it may be embraced by more general information generally available to the public or derived from combining information generally available to the public.
A disclosure by Recipient of Confidential Information in response to a valid order by a court or governmental body or as otherwise required by law shall not be considered to be a breach of this Agreement or a waiver of confidentiality for other purposes; provided, however, Recipient shall provide prompt prior written notice thereof to Discloser and permit Discloser to seek measures to maintain the confidentiality of its Confidential Information.
- Ownership and Return of Confidential Information. Confidential Information shall remain the property of Discloser, and no license or other rights to Confidential Information is granted or implied hereby. Recipient shall reproduce the symbols, legends or other proprietary notices affixed to Confidential Information, and shall not, nor permit any third party to, remove, add or modify the same.
Recipient shall, upon termination of this Agreement, or upon written request of Samsung, whichever is earlier, immediately, but not later than 10 days after any notice thereof by Samsung, return (or destroy at Samsung’s option) all copies of Confidential Information and certify in writing its compliance with this requirement.
- No Reverse Engineering. Recipient will not decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, techniques or algorithms in Confidential Information by any means whatever, except as may be specifically authorized in advance by Samsung in writing.
- No Warranty. Confidential Information is provided “AS IS” and “AS AVAILABLE” without any warranty, express, implied or otherwise, regarding such Confidential Information. Nothing herein shall be construed as a commitment by Discloser to disclose any Confidential Information, to commence or continue negotiations, or to enter into any contract or other business relationship. Neither this Agreement, nor the disclosure or receipt of Confidential Information, shall constitute or imply any promise or intention by any of the parties or their affiliates to develop, make, purchase or sell any present or future products or services. Any commitment to do or promise any of the foregoing must be in a separate writing signed by an authorized representative of each party. If any such agreement contains warranty provisions, those provisions shall prevail over the corresponding provisions in this Agreement. Recipient shall bear its own fees, costs and expenses incurred in carrying out, or otherwise in relation to, this Agreement.
- Term and Termination. This Agreement shall be effective from the Effective Date until 6 months thereafter. Either party may terminate this Agreement for any or no reason upon 10 days written notice to the other party. However, any termination of this Agreement shall not relieve Recipient of its confidentiality and use obligations with respect to Confidential Information disclosed prior to the date of such termination. Except for the right to use Confidential Information for the Purpose, which right terminates when this Agreement terminates, Recipient’s duty to protect Confidential Information, as well as Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15 shall survive any termination of this Agreement.
- Sub-Contractor. Should Recipient determine that a third party to this Agreement (“Sub-contractor”) is required to fulfill its requirements for the Purpose, and such sub-contractors may require access to Discloser’s Confidential Information, then:
(a) Recipient must obtain prior written permission of Discloser to disclose such Confidential Information to the Sub-contractor; and
(b) Recipient will enter into a confidentiality agreement with such sub-contractor that is at least as restrictive as the confidentiality requirements of this Agreement, and provide Discloser with written confirmation of the establishment of such agreement; and
(c) Recipient shall remain fully responsible for any legal liability that may result from any action of such Sub-contractor and indemnify Discloser against any and all losses, damages, claims or expenses including reasonable attorney’s and witness’ fees, incurred or suffered by Discloser as a result of such Sub-contractor’s disclosure of Discloser’s Confidential Information.
- Contacts. All notices, documentation and communications shall be in English and sent by personal delivery, pre-paid registered mail, overnight courier or facsimile transmission, to the relevant address set out below and shall be deemed to have been given on the date of receipt.
Samsung Product Support Department
105 Challenger Road Ridgefield Park, NJ 07660
- Export. Recipient shall comply with all applicable US and other export laws, regulations and rules and, in particular, will not export or re-export Confidential Information without obtaining all required government licenses, approvals or waivers.
- Remedies. Recipient acknowledges that any disclosure, use or misappropriation of Confidential Information in violation of this Agreement would cause Discloser irreparable harm for which there may be no adequate remedy at law. Accordingly, Recipient agrees that such other party shall have the right to apply to any court of competent jurisdiction for injunctive relief and specific performance, without prejudice to any remedies available to it at law or in equity.
- Assignment. Recipient shall not be entitled to assign, transfer or convey this Agreement or any of its rights or obligations hereunder, in whole or in part, by operation of law or otherwise, without the prior written consent of Samsung, and any attempt to do so without such consent shall be void.
- No Waiver. No claim, right or remedy of Discloser under this Agreement shall be deemed to be waived in whole or in part unless such waiver is in writing and signed. No relaxation, forbearance, delay or indulgence by a party in enforcing any of the provisions of this Agreement shall prejudice, affect or restrict the rights of that party under this Agreement, nor shall any waiver by a party of a violation of this Agreement operate as a waiver of any subsequent or continuing violation.
- Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable, (i) that provision shall be deemed amended to achieve as nearly as possible the same economic effect as the original provision, and (ii) the legality, validity and enforceability of the remaining provisions of this Agreement shall not be affected or impaired thereby.
- Law and Jurisdiction. This Agreement shall be governed by and construed in accordance with the laws of the Republic of Korea (excluding conflict of laws provisions which may direct the application 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(“Rules”) by one(1) arbitrator which is designated in accordance with the above Rules; 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.
- Entire Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and may not be amended or modified except in writing signed by each of the parties to this Agreement. The English language text of this Agreement shall prevail over any translations thereof.
IN WITNESS WHEREOF, the parties, intending to be legally bound, have caused this Agreement to be executed by their duly authorized representatives as of the date first above written.