JarCastingSamsungPaySDK
Samsung Pay Program Agreement
This Samsung Pay Program Agreement (the “Agreement”) is a legally binding contract between you, the individual end user, together with any company that employs you or that you represent (collectively “You”, “Your”, or “Company”) and Samsung Electronics America, Inc. (“Samsung”) (each a “Party” or jointly the “Parties”).
AGREEMENT APPLICABILITY. This Agreement is applicable to the Samsung Pay Program (as defined below) and the technology related thereto.
IT IS IMPORTANT THAT YOU READ CAREFULLY AND UNDERSTAND THIS AGREEMENT. BY CLICKING THE "ACCEPT" BUTTON OR AN EQUIVALENT INDICATOR YOU AGREE AS A LEGALLY AUTHORIZED REPRESENTATIVE OF COMPANY THAT COMPANY CONSENTS TO BE BOUND BY AND BECOME A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE THAT COMPANY CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS AGREEMENT, DO NOT CLICK ON THE “ACCEPT” BUTTON OR THE EQUIVALENT INDICATOR.
GENERAL TERMS AND CONDITIONS
ARTICLE I. DEFINITIONS
1.1 “Affiliate” means an entity that controls, is controlled by, or is under common control with the Party. 1.2 “API” means Samsung application programming interface(s). 1.3 “Application” means a software program developed and owned by Company that may utilize the SDK to accommodate Transactions by Users, including, without limitation, accepting payments, managing subscriptions and performing transaction reporting and other financial transactions. 1.4 “Applicable Law” means all laws (including common law), codes, statutes, ordinances, rules, regulations, Trade Restrictions, Privacy Laws, regulatory bulletins or written guidance, or any binding memorandum of understanding, cease-and-desist order, consent order, legal settlement, written agreement or other agreement with, or enforcement order of, any Governmental Authority of any jurisdiction and the Network Rules, as may be amended, that apply to a Party, its officers, employees, agents, representatives and contractors in connection with its performance under this Agreement. 1.5 “Brand Features” means the Company Brand Features or the Samsung Pay Brand Features, as applicable. 1.6 “Certified Acquirer” means an entity (i) that is authorized by the payment networks to provide Company payment card acceptance services in support of Transactions by Company Users; (ii) that has entered into and maintained in good standing all required Samsung Pay Program agreements with Samsung; and (iii) that has certified and continues to certify to Samsung’s acceptance that it has tested its capability to process Transactions in accordance with the Network Rules of each applicable payment network. 1.7 “Company Brand Features” means the trademarks, service marks, designs, icons and logos owned and/or controlled, in whole or in part, by Company made available by Company for use by Samsung. 1.8 “Company User” means an individual who has installed a Company Application on an Eligible Samsung Device. 1.9 “Confidential Information” has the meaning set forth in Section 7.1. 1.10 “Data Compromise” means any actual or suspected unauthorized acquisition of, or access to, Personal Information. 1.11 “Eligible Samsung Device" means any consumer product manufactured or distributed by Samsung in which the Samsung Pay Program is implemented and enabled by Samsung at its sole discretion. 1.12 “GLBA” means Title V -- Privacy of the Gramm-Leach-Bliley Act, P.L. 106-102, (15 U.S.C. §§ 6801–6809), and its implementing regulations (including but not limited to the standards for safeguarding customer information set forth in 12 C.F.R. Part 364 and 16 C.F.R. Part 314), all as they may be amended. 1.13 “Governmental Authority” means any federal, state, municipal or other governmental department, commission, board, bureau, agency or instrumentality, irrespective of whether of the United States of America or any foreign jurisdiction. 1.14 “Intellectual Property Rights” means all past, present, and future rights of the following types, which may exist or be created under the laws of any jurisdiction in the world: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, moral rights, and mask work rights; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents and industrial property rights; (v) other proprietary rights of every kind and nature; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in clauses “(i)” through “(v)” above. 1.15 “Level 1 Customer Support” means frontline support to Users with respect to their use of the Application. 1.16 “Network Rules” means operating rules of payment networks, including without limitation MasterCard International, Visa Inc., American Express Co., Discover Network and debit card networks, and all guidelines, manuals, bulletins, best practices and other requirements or guidance issued by payment networks, as amended from time to time. 1.17 “Personal Information” is information that identifies or, in combination with other data elements, can be used to identify an individual including, without limitation, an individual’s name, address, telephone number, credit or debit card number, expiration date, CVV code or other information, any other identifying numbers or symbols associated with an individual such as a social security number. Without limiting the foregoing, “Personal Non-Public Information” within the meaning of GLBA is Personal Information for purposes of this Agreement. 1.18 “Privacy Laws” mean all applicable federal, state and local laws governing the Processing of Personal Information, including but not limited to GLBA and state laws requiring notice of unauthorized access to or use of Personal Information. Privacy Laws also include Network Rules relating to the Processing of Personal Information, including the Payment Card Industry Data Security Standard (“PCI-DSS”), as they may be amended. 1.19 “Process” or “Processing” or “Processed” means the collection, storage, manipulation, use, disclosure, disposal or other action involving Personal Information. 1.20 “Restricted Country” means countries with which dealings by Samsung are restricted or prohibited under US Trade Restrictions in force from time to time and which currently are: Crimea, Cuba, Iran, North Korea, Sudan and Syria. 1.21 “Restricted Person” means any person who is, or is owned or controlled by, or acting on behalf of any of the following: (a) a person identified on the US Department of the Treasury's Office of Foreign Assets Control's List of Specially Designated Nationals and Blocked Persons, the US Department of Commerce's Denied Parties List, Entity List or Unverified List in effect from time to time (all available at: http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm); (b) the government of a Restricted Country; or (c) a person located in, organized under the laws of, or ordinarily resident in a Restricted Country. 1.22 “Samsung Pay Brand Features” means the trademarks, service marks, designs, icons and logos owned and/or controlled, in whole or in part, by Samsung or its Affiliates that are used in or relate to the Samsung Pay Program and made available by Samsung for use by Company. 1.23 “Samsung Pay Brand Guide” means the guidelines setting forth proper use of the Samsung Pay Brand Features. 1.24 “Samsung Pay Program” means technology, software, and/or services provided by Samsung or its Affiliates, which allow a User to conduct Transactions by using an Eligible Samsung Device or other method, as further described in the Services Documentation. 1.25 “Samsung Technology” means any inventions (whether or not patentable), ideas, concepts, processes, methods, know-how, designs, information, data, software programs (including source and object codes), SDKs, APIs, Samsung Pay Program, Services Documentation, Test Environment, Samsung Test Data, specifications, techniques, products, devices, apparatuses, works of authorship, and all other forms of technology. 1.26 “SDK(s)” means the Samsung software development kit which may include the APIs designated for the applications, Services Documentation, data, files, libraries, materials, IDE (Integrated Development Environment), sample code, software (source code and object code), simulators and tools provided or made available to Company by Samsung pursuant to this Agreement for use in connection with the development and operation of Applications. The SDK shall include any update that Samsung provides or makes available to Company. 1.27 “Services Documentation” means collectively, the operating instructions, user manuals, and help files, in written or electronic form, made available to Company by download that are intended for use in connection with the Samsung Pay Program, incorporated into this Agreement by reference. 1.28 “Terms of Use” means all applicable obligations, requirements, policies, guidelines, rules of conduct, terms and conditions of use (including those set forth in this Agreement) for the Samsung Pay Program, which may be modified by Samsung in its sole discretion from time to time. 1.29 “Territory” means the United States. 1.30 “Test Data” means any data made available by Samsung or utilized by Company for testing, simulating use of, or developing Applications under this Agreement. 1.31 “Test Environment” means the testing environment made available by Samsung for testing, simulating use of, or developing Applications in conjunction with this Agreement. 1.32 “Trade Restrictions” means export controls, trade and financial sanctions, anti-terrorism, non-proliferation, and similar restrictions in force from time to time pursuant to laws, rules and regulations of the United States and other applicable jurisdictions to which the Parties are subject, including but not limited to the US Export Administration Regulations, 15 C.F.R. Parts 730 et seq. (“EAR”) administered by the US Department of Commerce, Bureau of Industry and Security (“BIS”) and the regulations administered by the US Department of the Treasury, Office of Foreign Assets Control (“OFAC”). 1.33 “Transaction” means any payment or other transaction experience initiated by a User using Samsung Pay via an Application. 1.34 “User” means a person who is authorized to initiate Transactions through the Samsung Pay Program.
ARTICLE II. SAMSUNG PAY PROGRAM; COMPANY APPLICATION 2.1 In the event that Company participates in the Samsung Pay Program, Company will offer the Samsung Pay Program through its Application(s) to Users, including all Company Applications available to Users at the Effective Date and all Company Applications made available during the Term.
ARTICLE III. LICENSE AND INTELLECTUAL PROPERTY 3.1 Licenses a. License of Samsung Technology. Subject to the terms of this Agreement, Samsung hereby grants to Company and Company hereby accepts from Samsung a personal, limited, revocable, non-exclusive, personal, non-sublicensable, non-transferrable license, solely in the Territory, during the Term to the applicable Samsung Technology solely to: (i) install, code to and use the Samsung SDKs on as many machines as reasonably necessary (which machines are and will be maintained in facilities owned, occupied or leased by Company) solely for the purposes of developing, integrating, testing, and supporting its Application(s); (ii) use the Services Documentation solely for the purpose of using the Samsung SDKs; (iii) create a reasonable number of copies of the Services Documentation as necessary for Company’s internal use in relation to the Samsung Pay Program and only; (iv) integrate only those portions of the Samsung SDKs that are identified in the Services Documentation as redistributable into its Application(s) in accordance with the Terms of Use and the Services Documentation, solely for purposes of implementing and maintaining Samsung Pay Program functionality in its Application(s), and distribute such Samsung SDKs, solely as incorporated into such Application(s); and (v) use the Test Environment and Test Data for non-commercial testing purposes in accordance with the applicable Terms of Use and Services Documentation to test Company’s Application, including test transactions, test batch upload features, sample reports, and test and simulation of transaction responses. COMPANY AGREES THAT SAMSUNG MAY MONITOR USE OF THE SAMSUNG TECHNOLOGY TO ENSURE QUALITY, IMPROVE THE SAMSUNG PAY PROGRAM, AND VERIFY YOUR COMPLIANCE WITH THE AGREEMENT.
b. Restrictions. Except as expressly permitted under this Section 3 or as required by Applicable Law, Company SHALL NOT: (i) use, reproduce, distribute, sublicense, or permit others to use, reproduce, or distribute any Samsung Technology; (ii) make Samsung Technology available to unauthorized third parties; (iii) rent, electronically redistribute, timeshare or market Samsung Technology by interactive cable, remote processing services, service bureau or otherwise; (iv) directly or indirectly modify, reverse engineer, decompile, disassemble or derive source code from any Samsung Technology; (v) alter or remove any copyright, trademark, trade name or other proprietary notices, legends, symbols or labels appearing on or in the Samsung Technology or any reproduction thereof; (vi) distribute or otherwise provide all or any portion of Samsung Technology outside of the Territory or otherwise use or export any Samsung Technology in violation of Applicable Law; (vii) engage in any activity, including the development or distribution of any software (whether in the form of object code or source code), that interferes with, disrupts, damages, or accesses in an unauthorized manner any of the Samsung Pay Program, servers, or systems, or those of any of its Affiliates or any third party; or (viii) use the Samsung Technology or any associated data or content, or extract, scrape or otherwise deconstruct any of the Samsung Technology or any associated data or content, for the purpose of using individual data elements (e.g., geocodes), combining data elements (e.g., routes or paths), compiling, enhancing, verifying, supplementing, or otherwise modifying databases, lists, or directories of any kind, including, but not limited to, location databases, mailing lists, contact lists, marketing lists, geographical directories, or any other compilation or collation of information which is sold, rented, published, distributed or in any manner supplied to a third party.
c. API Limitations. Company acknowledges and agrees that Samsung, in its sole discretion, sets and enforces limits on the use of the Samsung APIs (e.g. limiting the number of API requests). Company will not attempt to circumvent the limitations documented in the Services Documentation for each Samsung API. In the event Company desires to use any Samsung API beyond these limits, Company must obtain Samsung’s prior consent and Samsung reserves the right to decline such request or require Company to agree to additional terms, in its sole discretion.
d. Protection of Samsung Technology. Company acknowledges and agrees that the proprietary information and know-how, techniques, algorithms, and processes contained in the Samsung Technology, including without limitation the Samsung SDKs, constitute trade secrets of Samsung and its Affiliates and shall only be used by Company in accordance with the terms of this Agreement. Therefore, Company shall not disclose any source code to the Samsung Technology to third parties and shall strictly protect such trade secrets.
e. Test Environment and Test Data. If Company uses the Test Environment and/or Test Data, Company agrees that: (i) Company is solely responsible for its use of the Test Environment and the use and handling of all Test Data, whether provided by Samsung or submitted by Company as well as any data generated or derived from that data; (ii) Samsung has no obligation to maintain such Test Data on its servers and reserves the right to delete from its systems all such data at regular intervals without notice; (iii) only simulated Test Data may be submitted or uploaded by Company (e.g., real account numbers, names, addresses, and other personal information may not be used for testing purposes, and may not be submitted or uploaded; (iv) load testing the Test Environment or Samsung Pay Program is not permitted; and (iv) Samsung has no obligation to monitor or validate any information submitted or uploaded by Company.
f. Open Source Software. The Samsung Technology may contain software that is subject to terms that, as a condition of use, copying, modification or redistribution, require such software and derivative works thereof to be disclosed or distributed in source code form, to be licensed for the purpose of making derivative works, or to be redistributed free of charge, including without limitation software distributed under the GNU General Public License or GNU Lesser/Library GPL (“Open Source Software”). To the extent any such license requires terms with respect to such Open Source Software that are inconsistent with this Agreement, then such rights in the applicable Open Source Software license shall take precedence over the rights granted in this Agreement, but solely with respect to such Open Source Software. Company acknowledges that any applicable Open Source Software license is solely between Company and the applicable licensor of the Open Source Software and that Company shall comply with the applicable Open Source Software license. Company shall not (and shall not permit or assist any Company User or any third party) to incorporate, link, distribute or use the Samsung Technology with any software licensed under any third party or open source license in any manner that could cause the Samsung Technology to become subject to the terms of an Open Source Software license.
g. Licenses of Company Applications. Company grants Samsung a non-exclusive, non-transferable license during the Term to use Company’s Applications and review the code in Company’s Applications for testing and other related purposes to ensure compliance with this Agreement.
h. Data Collection. Company agrees that Samsung and its Affiliates may collect and use technical and related information, including but not limited to information about Company, Company Applications, and Company computers, system software, other software and peripherals.
3.2 License of Brand Features.
a. Samsung Pay Brand Features. During the Term, and subject to the terms and conditions of this Agreement, Samsung hereby grants to Company and its Affiliates a non-exclusive, limited, paid-up, royalty-free, non-transferable, non-sublicensable, non-assignable license to use the Samsung Pay Brand Features solely to advertise, market and promote Company’s acceptance of the Samsung Pay Program in any and all media (whether now known or hereafter developed). Each use of a Samsung Pay Brand Feature will be subject to Samsung’s prior written approval and in conformance with the current Samsung Pay Brand Guide. Any and all goodwill associated with Samsung Pay Brand Features that arise in connection with the use hereunder will inure to Samsung’s sole benefit.
b. Company Brand Features. During the Term, and subject to the terms and conditions of this Agreement, Company hereby grants to Samsung and its Affiliates a non-exclusive, limited, paid-up, royalty-free, non-transferable, non-sublicensable, non-assignable license to use the Company Brand Features solely to advertise, market and promote Company’s use and/or acceptance of the Samsung Pay Program in any and all media (whether now known or hereafter developed). Each use of a Company Brand Feature will be subject to Company’s prior written approval. Any and all goodwill associated with Company Brand Features that arise in connection with the use hereunder will inure to Company’s sole benefit.
c. Restrictions on Use; Compliance with Applicable Laws; Trademark Notices. Samsung and Company both agree that each use of the other Party’s Brand Features will at all times be in compliance with Applicable Law and any trademark or other usage guidelines provided by the other Party, including appropriate trademark notices as may be required by law or reasonably specified in writing by the other Party. Neither Samsung nor Company will (i) take any action inconsistent with the other Party’s ownership of the Brand Features; (ii) use the other Party’s Brand Features in a manner that would tarnish, blur, or dilute the quality associated with the Brand Features or the associated goodwill as determined by the owner of the Brand Features in its sole discretion; and (iii) use the other Party’s Brand Features except as permitted under this Section 3, and the other Party may terminate the Brand Features license granted hereunder to Samsung or Company (as applicable) if any such prohibited conduct or use does not cease within a reasonable period of time after receipt of notice of the same from the other Party.
3.3 Ownership; Intellectual Property Rights.
a. Company acknowledges and agrees that Samsung or its Affiliates own the Samsung Technology and retain all Intellectual Property Rights thereto, including the Samsung Pay Brand Features and digital assets and marketing collateral provided by Samsung. Samsung acknowledges and agrees that Company owns its Applications (other than any Samsung Technology incorporated therein) and retains all Intellectual Property Rights thereto, including the Company Brand Features.
b. Except as expressly set forth in this Agreement, no licenses are granted by either Party to the other with respect to such Party’s technology (including, in the case of Samsung, the Samsung Technology) and Intellectual Property Rights, and all rights not expressly licensed hereunder are expressly reserved. Nothing in this Agreement restricts, or should be deemed to restrict, either Party’s right to exercise any rights or licenses received from any third parties or to grant other similar rights or licenses to any third parties. Each Party acknowledges that its use of the other Party’s technology or Intellectual Property Rights will not create any right, title or interest in or to such technology or Intellectual Property Rights. In the event that Company is determined to have acquired any right, title or interest in or to the Samsung Technology, Company hereby agrees to assign, and hereby assigns, to Samsung all such acquired right, title and interest in or to such technology and all Intellectual Property Rights thereto.
ARTICLE IV. APPLICATION REQUIREMENTS 4.1 Registration. In the event Company develops an Application, Company acknowledges and agrees that each Company Application must satisfy all conditions, registration procedures and requirements that Samsung deems necessary and as set out in this Agreement and Services Documentation to utilize the Samsung Pay Program, including, without limitation, the following: i. Register with Samsung each Application that will accept Transactions and each new version of an Application that will accept Transactions, prior to general User availability. If Company uses a service provider’s hosted solution that is already integrated into the Samsung Pay Program, registration of Company’s Application may not be necessary; ii. Upload the applicable encryption certificate with its public key as provided by Company’s Certified Acquirer, if applicable; iii. Use the SDKs and related artifacts such as sample codes to develop the Company’s Application; and iv. Any other functions that Samsung may require or make available to Company from time to time.
4.2 Testing. Prior to release of Company’s Application using the Samsung Pay Program, Company will (i) successfully implement and integrate the Samsung Pay Program into a live production environment of the Application and any associated mobile optimized site; (ii) successfully conduct end-to-end testing in accordance with Samsung’s test procedures; and (iii) cause its Certified Acquirer to support such testing. The Parties agree to perform closed testing for a period of thirty (30) days prior to the mutually agreed upon release date. The closed testing will be conducted by Company and Samsung, or as otherwise mutually agreed upon by the Parties. Company acknowledges that Samsung may disclose the results of such testing to participating card networks and card issuers. In the event Company uses the debug API key, Company will use the debug API key solely for internal purposes and will not use the same for mass distribution of Application(s) through app stores (e.g., Google Play, Samsung Galaxy Apps) or otherwise.
4.3 Availability. Upon completion of testing, Company will (i) make its Company Application available on the Android platform within the Google Play Store; (ii) inform Company Users that the Samsung Pay Program is an option for Transactions conducted through its Application; (iii) display the Samsung Pay Program to Company Users in the Application with equal prominence in comparison to other payment and transaction options; and (iv) enable the Samsung Pay Program as a “checkout” methodology in its Application.
4.4 Application Support. Company will provide, whether directly or through a third-party provider, Level 1 Customer Support to Company Users in connection with the Company Application and related Transactions. Company is responsible for obtaining such support as Company may require from its Certified Acquirer. Samsung will provide Level 1 Customer Support to its Users in connection with the Samsung Pay Program. Samsung will not be responsible for providing Level 1 Customer Support for Company Users use of the Samsung Pay Program in Company’s Application.
4.5 Restrictions. Company agrees that Company’s Applications will not (i) be used for nuclear energy equipment, air traffic control, the operation of critical communication system, public transportation control, life support devices, or other ultra-hazardous uses where failure of the Application to perform would be reasonably expected to cause deaths, injuries or severe physical property or environmental losses; or (ii) disable, hack or otherwise interfere with any authentication, content protection, digital signing, digital rights management, security or verification mechanisms implemented in the Samsung Pay Program or Eligible Samsung Devices.
4.6 Compliance. Company acknowledges and agrees that each Application must comply with all Applicable Laws. If an Application collects, records, captures, transmits, maintains, processes, shares, discloses or otherwise exploits any form of data relating to a User: (i) Company must comply, and the Application must be compliant, with all Applicable Laws and Privacy Laws, including the CAN-SPAM Act (15 U.S.C. §§ 7701–7713); and (ii) without limiting the foregoing, Company must provide Users with a clear and complete privacy statement or equivalent. If Company engages a service provider to exercise its rights, duties, and/or obligations under this Agreement, Company shall be liable for the actions or inactions of such service provider.
4.7 Prohibited Activities. Company will not use the Samsung Pay Program in any manner that violates any law, statute, ordinance or regulation or is related to Transactions that are illegal, infringing of the Intellectual Property Rights of a third party or deemed by Samsung to be offensive, inappropriate, or objectionable. In the event Samsung determines Company has violated this prohibition, Samsung reserves the right to suspend Company’s use of the Samsung Pay Program.
4.8 Security. Company will promptly notify Samsung of: (i) any vulnerability or security issues within an Application; (ii) any discontinuation or suspension of service or support with respect to an Application; or (iii) other events requiring Samsung to suspend the access by an Application to the Samsung Pay Program.
ARTICLE V. MARKETING 5.1 Public Announcements. Except for an announcement intended solely for internal distribution or any disclosure required by legal, accounting or regulatory requirements beyond the reasonable control of either Party, all media releases, public announcements or public disclosures by either Party or its employees or agents relating to this Agreement or its subject matter, or including the name, trade name, trademark, or symbol of the other Party, are prohibited without the prior written consent of both Parties. Notwithstanding the foregoing, Samsung and its Affiliates will be entitled to include Company’s name and/or logo in customer lists within Samsung presentations without prior written consent.
5.2 Marketing. To the extent the Parties agree to promote and market the Samsung Pay Program, the terms and conditions of such promotion and marketing will be mutually agreed upon by the Parties in writing.
ARTICLE VI. TERM AND TERMINATION 6.1 Term and Termination of Agreement. This Agreement will commence on the date Company indicates its acceptance of the terms and conditions of this Agreement and will remain in effect for one (1) year, unless terminated earlier by either Party in accordance with this Agreement (“Initial Term”). Following the Initial Term, this Agreement will automatically renew for successive one (1) year periods (each, a “Renewal Term”) unless either Party provides prior written notice to the other of its intention not to renew, not later than sixty (60) days prior to the end of then-current Term. The Initial Term, together with any Renewal Term(s), will be referred to as the “Term.” Either Party will have the right to terminate this Agreement upon written notice to the other Party if such other Party: (i) is in material breach of its obligations under this Agreement and has not cured such breach within ten (10) business days of written notice thereof; (ii) has a receiver or similar party appointed for its property, becomes insolvent, acknowledges its insolvency in any manner, ceases to do business, makes an assignment for the benefit of its creditors, files a petition in bankruptcy, or has an involuntary petition in bankruptcy filed against it; or (iii) violates Applicable Laws.
6.2 Suspension. Effective immediately upon notice to Company, Samsung may suspend or terminate Company’s use of the Samsung Pay Program if Samsung determines in its sole discretion that: (i) Company has violated Applicable Laws or Network Rules; (ii) Company is trading in goods and/or services that are deemed offensive or unlawful; (iii) Company has failed to implement updates or upgrades necessary to safeguard Users as reasonably notified by Samsung or Company’s Certified Acquirer; (iv) in the event of a Data Compromise; or (v) for any other reason that would provide Samsung a right of suspension or termination under this Agreement.
6.3 Effect of Termination. Effective upon termination, each Party will immediately cease representing to the public any affiliation between it and the other Party in connection with the subject matter of this Agreement; and each Party will return to the other Party or destroy (at the other Party’s request) all Confidential Information and technology of such other Party. All rights and licenses granted to Company under this Agreement will be extinguished.
ARTICLE VII. CONFIDENTIAL INFORMATION 7.1 “Confidential Information” means any data or information, oral or written, treated as confidential that relates to either Party (or, if either Party is bound to protect the confidentiality of any third party’s information, such third party’s) past, present or future research, development or business activities, including any unannounced products and services, any information relating to services, developments, Services Documentation (in whatever form or media), inventions, processes, plans, financial information, revenue, transaction volume, forecasts, projections, and the financial terms of this Agreement. Notwithstanding the foregoing, Confidential Information will not include information if it: (i) was already known to the Receiving Party prior to the Effective Date of this Agreement; (ii) is in or has entered the public domain through no breach of this Agreement or other wrongful act of the Receiving Party; (iii) has been rightfully received by the Receiving Party from a third party and without breach of any obligation of confidentiality of such third party to the owner of the Confidential Information; (iv) has been approved for release by written authorization of the owner of the Confidential Information; or (v) has been independently developed by a Party without access to or use of the Confidential Information of the other Party.
7.2 Each Party (the “Receiving Party”) will, and will ensure that its employees, Affiliates, agents, external advisors and representatives (together “Representatives”) keep secret and confidential the Confidential Information of the other Party (the “Disclosing Party”), using at least the same degree of care in maintaining its secrecy as it uses in maintaining the secrecy of its own Confidential Information but in no event less than a reasonable degree of care. The Receiving Party will not disclose the Confidential Information of the Disclosing Party in whole or in part to any other person without the Disclosing Party’s prior written consent, except to its Representatives to the extent necessary to perform its obligations or exercise its rights under the Agreement. Notwithstanding any provision in this Agreement to the contrary, each Party may disclose Confidential Information of the other Party to the extent it is required to be disclosed pursuant to a valid order or requirement of a governmental agency or court of competent jurisdiction, provided that the owner of the Confidential Information will be given reasonable notice of the pendency of such an order or requirement and the opportunity to contest it. Except as otherwise provided in this Agreement, within thirty (30) calendar days of termination of this Agreement, the Receiving Party will, upon request, destroy all materials that constitute Confidential Information and/or intellectual property of the Disclosing Party and provide to the Disclosing Party written certification signed by an authorized officer of the Receiving Party that all such information was so destroyed.
7.3 Notwithstanding any provision in this Agreement to the contrary, each Party may retain Confidential Information that is (i) stored on archival or back-up files or (ii) required for compliance with Applicable Law, Network Rules, or its obligations pursuant to this Agreement, provided that such Party continues to maintain the confidentiality of such Confidential Information pursuant to the terms of this Agreement.
ARTICLE VIII. PRIVACY; DATA COMPROMISE; TRADE RESTRICTIONS 8.1 Compliance with Privacy Laws. Company will Process Personal Information received as a result of or in connection with this Agreement strictly in accordance with Privacy Laws and the Network Rules. Without limiting the foregoing, Company agrees to take measures to protect Personal Information that are at least as rigorous as those required by Privacy Laws and the Network Rules and as appropriate to the nature and sensitivity of the Personal Information it is Processing.
8.2 Data Compromise. Company will notify Samsung of any Data Compromise as a result of or in connection with this Agreement immediately or as soon as is reasonably practicable. In the event of such a Data Compromise, Company will: (i) promptly provide Samsung with a detailed description of the incident, the data accessed, a report of any investigation of the Data Compromise and such other information as Samsung reasonably may request; (ii) take prompt actions to remedy any vulnerability or deficiency related to the Data Compromise; and (iii) fully cooperate with Samsung and any Governmental Authority investigating such Data Compromise. Company agrees that it will not inform, or permit any Affiliate, agent or subcontractor to inform, any third party of a Data Compromise without Samsung’s prior written consent; provided, however, if disclosure is compelled by applicable Privacy Laws, Company will use commercially reasonable efforts to obtain Samsung’s approval regarding the content of such disclosure to minimize any adverse impact to Samsung and any relevant Company Certified Acquirers.
8.3 PCI-DSS Compliance. Company represents, warrants and covenants that if applicable it is compliant and at all times during the Term, will maintain full compliance with applicable PCI-DSS requirements. Upon execution of this Agreement and annually thereafter, Company will provide to Samsung documentation that substantiates Company’s compliance with PCI-DSS if applicable.
8.4 Compliance with Trade Restrictions. a. Company expressly agrees and acknowledges that (i) the Samsung Technology provided to Company by hereunder are subject to Trade Restrictions, and (ii) Samsung's ability to perform under this Agreement is subject to Samsung's compliance with such Trade Restrictions. Company agrees that any refusal or failure by Samsung to perform its obligations hereunder on account of good faith compliance with Trade Restrictions will not constitute a breach of any obligation under this Agreement and hereby waives any and all claims against Samsung for legal recourse, including but not limited to injunctive or declarative relief, loss, cost or expense, including consequential damages, that Company may incur or be subject to by virtue of such refusal or failure.
b. Notwithstanding any other provision of this Agreement to the contrary, Company shall not use, download, export, re-export, import, sell or transfer any of the Samsung Technology except in full compliance with applicable Trade Restrictions, including but not limited to licensing, notification and reporting requirements. In particular, without limitation, under no circumstances shall Company download, export, re-export or transfer any of the Samsung Technology or cause their download, export, re-export or transfer, directly or indirectly, (i) into a Restricted Country; (ii) to any Restricted Person; or (iii) to any proliferation-related (nuclear weapons, missile technology, or chemical/biological weapons) end-use. Samsung assumes no responsibility for Company’s failure to obtain necessary authorizations or to comply with required formalities under applicable Trade Restrictions.
c. Company shall not do or omit to do anything that may cause Samsung, in Samsung's reasonable judgment, to be in breach of applicable Trade Restrictions.
ARTICLE IX. LIMITATION OF LIABILITY IN NO EVENT WILL EITHER PARTY, ITS RESPECTIVE SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, PRINCIPALS, AGENTS, CONTRACTORS, SUBCONTRACTORS, CONSULTANTS, EMPLOYEES OR SHAREHOLDERS BE LIABLE UNDER ANY THEORY OF TORT (INCLUDING NEGLIGENCE), CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS OPPORTUNITIES OR THE LIKE, OR ANY OTHER EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SAMSUNG’S ENTIRE LIABILITY TO COMPANY FOR ANY CLAIMS ARISING IN CONNECTION WITH ANY OBLIGATIONS UNDER THIS AGREEMENT WILL BE LIMITED TO PROVEN DIRECT DAMAGES NOT TO EXCEED ONE HUNDRED THOUSAND DOLLARS (US $100,000). NOTHING IN THIS AGREEMENT WILL BE DEEMED TO EXCLUDE OR LIMIT LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED AS A MATTER OF LAW.
ARTICLE X. REPRESENTATIONS AND WARRANTIES 10.1 Warranties. Each Party represents, warrants and covenants that: (i) it will comply with all Applicable Laws and Privacy Laws in connection with the performance of its obligations under this Agreement; (ii) it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization; and (iii) it has full power and authority, and all other rights, licenses and authorizations required, to execute and deliver this Agreement, to perform its obligations set forth herein, and to grant all rights granted herein. Company represents and warrants that at all times it will comply with the Services Documentation.
10.2 Company Warranty. You represent and warrant that: (i) all information You have provided and will provide to Samsung is true, correct and complete in all respects; (ii) You will update Samsung by email or other method as designated by Samsung with any changes to information You have previously supplied; (iii) no authorization or approval from any third party is required in connection with Your execution, delivery or performance of this Agreement, (iv) You have the legal right, power and authority to accept the terms and conditions of this Agreement on Your own behalf and on behalf of any company that employs You or that You represent, including any third parties; (v) this Agreement constitutes a legal, valid and binding obligation, enforceable against You (including any company that employs You or that You represent) in accordance with its terms; (vi) Your obligations under this Agreement do not violate any law or any Samsung guidelines, to the extent applicable, or breach any other agreement to which You are bound; (vii) any materials You provide, create or develop that are in any way related to this Agreement, or the use thereof, do not and will not infringe any Intellectual Property Rights of any third party; and (viii) You are not a Restricted Person.
10.3 DISCLAIMER OF WARRANTY. EXCEPT FOR THE COVENANTS, OBLIGATIONS, REPRESENTATIONS AND WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY, AND BOTH PARTIES EXPRESSLY DISCLAIM, ALL OTHER REPRESENTATIONS AND WARRANTIES (INCLUDING WITH RESPECT TO ALL GOODS OR SERVICES OF SUCH PARTY), INCLUDING ALL STATUTORY AND IMPLIED WARRANTIES, ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR USE OR FREEDOM FROM INFRINGEMENT OR THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, ALL WARRANTIES THAT ITS SYSTEMS WILL 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. NEITHER SAMSUNG NOR ANY OF ITS AFFILIATES WILL BE RESPONSIBLE FOR ANY FAILURES OR INTERRUPTIONS TO THE SAMSUNG PAY PROGRAM. COMPANY UNDERSTANDS AND AGREES THAT SAMSUNG SHALL BEAR NO RISK WITH RESPECT TO CUSTOMER’S SALES OF ITS PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, DISPUTES WITH BUYERS OF COMPANY PRODUCTS OR SERVICES, CHARGEBACKS, INVESTIGATIONS OR COLLECTION ACTIVITY.
ARTICLE XI. INDEMNIFICATION 11.1 Company Indemnification. Company (the “Indemnifying Party”) agrees to indemnify, defend and hold harmless Samsung and its Affiliates and its and their respective officers, directors, employees, agents, successors, licensees, suppliers, service providers and assigns (the “Indemnified Party”) from and against any and all claims, losses, liabilities, damages, penalties, governmental inquiries, investigations and proceedings, as well as all costs and expenses (including reasonable attorneys’ fees) related to any of the foregoing brought by third parties (including the government) (all of the foregoing, collectively, “Claims”) arising from (i) Company’s breach or alleged breach of any representation, warranty or covenant of this Agreement; (ii) use by Samsung or its Affiliates of any of the Company Brand Features or other materials furnished by or on behalf of Company in accordance with this Agreement; (iii) Company’s advertising, marketing or promotion of the Samsung Pay Program; (iv) arising from a Data Compromise experienced by Company or any vendor engaged by Company; (v) any claims of Company Users relating to Company’s performance of its obligations to Company Users, including but not limited to any chargebacks or credits with respect to Transactions; and (vi) any claims that Company’s Applications infringe the proprietary rights of third parties, except to the extent the underlying Claim relates to the authorized use of the Samsung Pay Brand Features or any other materials furnished by or on behalf of Samsung.
ARTICLE XII. UPDATES 12.1 Samsung may, at any time, provide bug fixes, enhancements, new releases, new versions, supplements, updates, upgrades or otherwise modify the Samsung Pay Program (“Update(s)”). If Samsung makes available an Update, such Update will be governed by this Agreement unless separate terms and conditions are provided with such Update, in which case such separate terms and conditions will govern the Update. Company will implement an Update to its Application(s) within thirty (30) days of the date such Update is made available and, if required by Samsung, must pass Samsung’s internal testing requirements. Company agrees to periodically check for availability of any new Updates.
ARTICLE XIII. MASTERCARD DISCLOSURE 13.1 MasterCard requires Samsung to add the following disclosure. Capitalized terms used and not defined in this Agreement are based on terms defined by the MasterCard Rules which will be provided to Company by Company’s Certified Acquirer. “MASTERCARD IS COMMITTED TO ENSURING THE INCREASED SECURITY AND INTEGRITY OF THE PAYMENT ECO-SYSTEM. TOKENIZATION AND DIGITIZATION SERVICE TOKENS REPRESENT A VALUABLE NEW TECHNOLOGY TO SECURE REMOTE PAYMENTS THAT MASTERCARD WILL OFFER TO COMPANIES FOR FREE AS (A) AN INCENTIVE TO ADVANCE THE ADOPTION OF THIS TECHNOLOGY-ENABLED PAYMENT OPTION; AND (B) AN INCENTIVE TO ROUTE TRANSACTIONS TO THE MASTERCARD NETWORK. THE COMPANY IS MAKING A CHOICE TO OPT IN TO THE TOKEN VALUE-ADDED TRANSACTION TYPE. IF THE COMPANY DOES NOT WANT TO ROUTE TO THE MASTERCARD NETWORK IN EXCHANGE FOR THIS INCENTIVE, THEN THE COMPANY CAN ACCEPT DEBIT MASTERCARD CARDS IN A MORE TRADITIONAL INTERFACE THAT ALLOWS FOR A ROUTING CHOICE. BY (1) AGREEING TO THIS AGREEMENT; (2) DEVELOPING A RELEVANT COMPANY SOFTWARE APPLICATION FOR ENABLED DEVICES; AND (3) ACCEPTING DIGITIZATION SERVICE TOKENS FOR PURCHASE TRANSACTIONS MADE THROUGH SUCH APPLICATION OVER A WIRELESS CARRIER NETWORK, ONLINE OR IN ANOTHER REMOTE OR NON-FACE-TO-FACE ENVIRONMENT, THE COMPANY IS CHOOSING TO ACCEPT THE INCREMENTAL VALUES OFFERED BY DIGITIZATION SERVICE TOKEN ACCEPTANCE AND TO ROUTE TRANSACTIONS USING DIGITIZATION SERVICE TOKENS TO THE MASTERCARD NETWORK.”
ARTICLE XIV. FEEDBACK 14.1 In order for Samsung to improve the Samsung Pay Program, Samsung may from time to time request Company to provide feedback regarding the Samsung Pay Program (“Feedback”) and Company will use commercially reasonable efforts to promptly respond to such request. Company will also inform Samsung of present and probable malfunctions, defects or security problems with the Samsung Pay Program and/or Eligible Samsung Devices and will provide reasonable cooperation at Samsung’s request to further diagnose all such problems. In the event that Company provides Feedback, Samsung will have the right to use such Feedback in its products and services that are contemplated under this Agreement without consideration or payment to the Company.
ARTICLE XV. DEVELOPER COMMUNITY 15.1 Rules of Conduct. Company acknowledges that it is solely responsible for the content and consequences of any material Company chooses to post or otherwise make available to Samsung Pay platforms (“Company Developer Materials”), including their legality, reliability, appropriateness, and trademark and copyright ownership. Company grants Samsung and its users of the perpetual, irrevocable, nonexclusive right and license to display, use, copy, modify, publish, distribute, transmit, print, and otherwise exploit any such Company Developer Materials without restriction. Company agrees that Company shall not upload, post or transmit to or distribute through Samsung Pay platforms any Company Developer Materials (including text, links, communications, software, images, sounds, data, or other information) that may: (i) contain any Confidential Information (of Company or Samsung) or any confidential information of any other person or entity, including, but not limited to, proprietary information, trade secrets, personally identifiable information, cardholder information and the terms of Samsung-related agreements; (ii) be false, libelous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, harmful, invasive of privacy or publicity rights, abusive, inflammatory, illegal or otherwise objectionable or injurious to third parties; (iii) constitute or encourage conduct that is unlawful or would constitute a criminal offense, give rise to civil liability or otherwise violate any Applicable Law; (iv) violate, misappropriate or infringe any Intellectual Property Rights or other rights of any third party; (v) constitute advertising, junk mail, spam, chain letters, or any other form of unauthorized solicitation; or (vi) otherwise violate Samsung's Privacy Policy or any Terms of Use.
15.2 Usage Guidelines. While using Samsung Pay platforms, Company agrees to: (i) be courteous and respectful of others; (ii) keep posts relevant to Samsung Pay Program; and (iii) remember that information from third parties appearing in Samsung Pay platforms may be incorrect, incomplete, unclear or misleading.
15.3 Moderator. In its sole discretion, Samsung may select or retain one or more moderators or Samsung may utilize tools to enable moderation functionality for the Samsung Pay platforms. Such moderators may have rights and privileges to, among other things as determined in Samsung's sole discretion, edit/delete posts and posted materials, close threads, and block users from using the Samsung Pay platforms. Samsung or the moderators may remove any materials (before or after posting) or block user access that, in its sole discretion, do not comply with the current applicable Terms of Use, including the terms of this Agreement, or that are otherwise inappropriate. Samsung is not responsible and shall have no liability for any removal of materials or blocking of users, or any failure or delay in removing any such materials or blocking such user access. To report any concerns or possible violations, please write to the support email address designated by the applicable Samsung Pay platform.
15.4 Links. In the Samsung Pay platforms, Company may find posts that contain hyperlinks to content hosted and maintained by third parties. The linked sites are not approved or controlled by Samsung and access to any linked site is at Company’s own risk. Samsung makes no claim or representation regarding, and accepts no responsibility for, sites accessible by hyperlink from Samsung Pay platforms.
15.5 User Content. Material supplied by users of the Samsung Pay platforms is the sole responsibility of the person originating the material and Samsung does not control or monitor, and disclaims all liability for, such material.
15.6 Submissions. Samsung's policy is to not accept or consider unsolicited submissions, including, without limitation, ideas, suggestions or materials, either via the Samsung Pay platform, email or other means. Company understands Samsung may or may not review unsolicited submissions. However, if Company transmits to Samsung any unsolicited submission or any feedback, input, suggestions, reports, data or recommendations, in writing, orally, by demonstration or otherwise, concerning the Samsung Pay Program or Samsung Technology (collectively, “Input”), Company grants to Samsung and its designees a royalty-free, fully paid, transferable, sublicensable, non-exclusive, irrevocable, perpetual, unrestricted, worldwide license to publish, transmit, perform, display, modify, create derivative works from and otherwise use such Input and any related Intellectual Property Rights for any purpose without any credit, notice, approval or compensation to Company. Without limitation thereof, Company agrees that Samsung and its designees are free to use any ideas, concepts, know-how or techniques contained in any Input Company provides for any purpose whatsoever, including, without limitation, developing and marketing products, services and content. Furthermore, any Input Company transmits to Samsung, even if marked as confidential, shall not create any confidentiality obligations on the part of Samsung unless otherwise agreed in a separate, signed agreement.
ARTICLE XVI. MISCELLANEOUS 16.1 Costs and Expenses. Each Party will bear its own costs and expenses in performing its respective obligations under this Agreement, including any development, implementation and integration expenses necessary to operate or participate in the Samsung Pay Program. In particular, Company is solely responsible for all costs and expenses related to the use of the SDKs and the development of any Company Applications.
16.2 Assignment. Company may not assign this Agreement, in whole or in part, without the prior written consent of Samsung; it being understood that any transfer or assignment made as part of an internal corporate reorganization will not be deemed an assignment in violation of this section. Except as provided in the immediately preceding sentence, any attempt by Company to assign or transfer this Agreement will be null and void.
16.3 Relationship; Rights, Benefits and Beneficiaries. This Agreement shall not be construed as creating or constituting an employee-employer relationship, a partnership, a joint venture, a franchise, or an agency between Company and Samsung and/or either Party’s Affiliates. Neither Company nor Samsung may bind the other in contracts with third parties or make promises or representations on behalf of the other Party without a signed written consent, and employees and agents of one Party are not for any purpose employees or agents of the other. Neither Party owes the other Party or any third party any compensation for performing the actions contemplated by this Agreement, except as expressly set forth in this Agreement. Except as expressly provided herein, this Agreement is made for the benefit of Samsung, its Affiliates and Company only, and this Agreement is not intended to confer any rights, benefits or remedies upon any other person or third party.
16.4 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 competes with a Company Application or performs the same or similar functions as a Company Application.
16.5 Notices. All notices to Company will be given electronically, sent to the electronic mail address provided by or for Company during the registration process and/or posted in the Announcement section of the applicable Samsung Pay platform. Notices to Samsung must be in writing and sent to: Samsung Electronics America, Inc., Legal Dept., 3 Van de Graaff Drive, Burlington, MA 01803. Such written notice will be deemed given upon personal delivery, upon confirmation of receipt or three (3) days after the date of mailing if sent by certified or registered mail, postage prepaid. Electronic mail notices will be deemed given the next business day following the date delivered.
16.6 No Waiver; Remedies Cumulative; Entire Agreement. A waiver of any breach, default or condition under this Agreement will not constitute a waiver, or continuing waiver, of such, or any other or subsequent, breach, default or condition. No failure or delay by either Party in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise by either Party of any right power or privilege preclude any further exercise thereof or any other right, power or privilege. All remedies, rights, undertakings, obligations and agreements contained in this Agreement will be cumulative and none of them, nor the exercise or failure to exercise any of them, will be in limitation of any other remedy, right, undertaking, obligation, or agreement of either Party. This Agreement (including any additional Terms of Use) sets forth the entire agreement and understanding of the Parties relating to the subject matter hereof, and supersedes all prior and contemporaneous agreements, arrangements, and understandings, regardless of whether or not written or oral, relating to the subject matter hereof.
16.7 Choice of Law; Jurisdiction. This Agreement will be governed by and construed in accordance with United States federal law and the laws of the State of New York without giving effect to the conflict of law principles thereof. All disputes, controversies, or claims between the Parties arising out of or in connection with this Agreement including the existence, validity or termination will be finally resolved by arbitration to be held in New York City, New York and conducted in English under arbitration rules of 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 the equitable relief. The arbitral award will 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, will be held in confidence.
16.8 Force Majeure. A Party will be excused from performance hereunder if such non-performance arises from causes beyond its reasonable control and without its fault or negligence. Such causes may include, but are not limited to: (a) catastrophic natural events such as earthquakes, tornadoes or unusually severe weather conditions; (b) breakdowns in the normal delivery of public services such as electricity, telecommunications or transportation; or (c) directions of any governmental body acting in its sovereign or regulatory capacity (each a “Force Majeure Event”). The foregoing will not apply to excuse a Party’s failure to make payments when due or failure to comply with Applicable Law. Such Party’s performance will be excused for only so long as such Party continues to use commercially reasonable efforts to mitigate the effect and duration of such Force Majeure Event. The Parties will promptly resume performance hereunder after the Force Majeure Event has passed; however, if a delay continues for thirty (30) days or more, the Party not experiencing the Force Majeure Event may terminate this Agreement without penalty upon written notice to the other Party. A Force Majeure Event will be notified to the other Party within five (5) days after the occurrence.
16.9 Amendment; Modifications. This Agreement may not be modified or amended other than in a writing signed by each of the Parties hereto. Notwithstanding the foregoing, Samsung reserves the right to modify the terms of this Agreement and any Terms of Use at any time. Samsung will post the most recent version of this Agreement and Terms of Use on the applicable Samsung Pay platform. Samsung may change this Agreement and/or the Terms of Use by posting a new version(s) and Company agrees that it is Company’s responsibility to periodically check for new versions. The most recent modification date will be noted by the “Last Updated” date. To the fullest extent permitted under Applicable Law, Company’s continued use of the Samsung Pay Program after any such modification constitutes Company’s acceptance of the Agreement and/or Terms of Use as modified. If Company does not agree to any modification of this Agreement and/or the Terms of Use, Company must immediately stop accessing and using the Samsung Pay Program.
16.10 Interpretation; Headings. The Parties have participated jointly in the negotiation and drafting of this Agreement and each of the Parties has had the opportunity to have its legal counsel review this Agreement on its behalf. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties and no presumption or burden of proof will arise favoring or disfavoring any Party because of the authorship of any provision of this Agreement. The headings of this Agreement’s Articles and Sections are for convenience only, and they will not have any effect in construing the contents of the respective Articles and Sections. All references in this Agreement to “include” or “including” will mean “including without limitation.”
16.11 Severability. The provisions in this Agreement are separate and independent. If a provision of this Agreement is adjudicated to be void, illegal, invalid or unenforceable, the remaining terms and provisions of this Agreement will be valid and enforceable to the fullest extent permitted by law, unless a Party demonstrates by a preponderance of the evidence that the invalidated provision was an essential economic term of this Agreement.
16.12 Successors. All of the terms, agreements, covenants, representations, warranties, and conditions of this Agreement are binding upon, and inure to the benefit of and are enforceable by, the Parties and their respective successors and assigns.
16.13 Survival. Upon the effective date of any termination or expiration of this Agreement, Articles VIII, IX, XI, XIII and XVIII and any other provision that, by its terms, is intended to survive the expiration or termination of this Agreement, will remain in full force and effect.
BY CLICKING "ACCEPT" OR AN EQUIVALENT INDICATOR, YOU ACKNOWLEDGE AND AGREE THAT AS A LEGALLY AUTHORIZED REPRESENTATIVE OF COMPANY: (1) YOU HAVE READ AND REVIEWED THIS AGREEMENT IN ITS ENTIRETY ON BEHALF OF COMPANY; (2) YOU AGREE ON BEHALF OF COMPANY THAT COMPANY IS BE BOUND BY THIS AGREEMENT; (3) YOU HAVE THE POWER, AUTHORITY AND LEGAL RIGHT TO ENTER INTO THIS AGREEMENT ON BEHALF OF COMPANY; AND (4) THIS AGREEMENT CONSTITUTES BINDING AND ENFORCEABLE OBLIGATIONS ON COMPANY.
The effective date of this Agreement will be the date Company’s authorized representative clicked “ACCEPT” or an equivalent indicator (the “Effective Date”).