Gear End User License Agreement for Samsung Software (EULA)

Read carefully this End User License Agreement (the "Agreement") before using Samsung manufactured or branded wearable devices such as Gear and Gear Fit series (collectively, “Wearable Device”), and Samsung wearable device manager applications (collectively, “Manager”) as it contains important information.
07/17/2017

Table of Contents

Important Legal Information

Important legal and health and safety information can also be accessed in writing on the mobile device or on www.samsung.com

Samsung Electronics America, Inc.
85 Challenger Road, Ridgefield Park, New Jersey 07660
Phone: 1-800-SAMSUNG (726-7864)
Internet Address: www.samsung.com

© 2017 Samsung Electronics America, Inc.
Samsung is a registered trademark of Samsung Electronics Co., Ltd.

IMPORTANT. READ CAREFULLY:

This End User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Samsung Electronics Co., Ltd. (“Samsung”, “we”, “us”) for software, whether pre-installed or downloaded, that is owned by Samsung and/or its affiliated companies and its third party suppliers and licensors, that accompanies this EULA, which includes software, associated media, content, data, printed materials, and electronic documentation in connection with your use of the Samsung Product, which will be defined below (“Samsung Software”).

By using this device or any other Samsung Product, including wearable devices, accessories, and mobile phones and tablets running on the Android or other Samsung operating system (“Product”), you accept the terms of this EULA. If you do not accept these terms, do not use the Product or the Samsung Software.

If you are under the age of 13, you may not license or use this software. If you are a Minor 13 or older but younger than 18 (“Minor”), you represent that you have reviewed this EULA with your parent or legal guardian and that you and your parent or guardian understand and consent to the terms and conditions of this EULA. If you are a parent or guardian permitting a Minor to use the Product, you agree to: (i) supervise the Minor's use of the Product; (ii) assume all risks associated with the Minor’s use of the Product, (iii) assume any liability resulting from the Minor’s use of the Product; (iv) ensure the accuracy and truthfulness of all information submitted by the Minor; and (v) assume responsibility and are bound by this EULA for the Minor’s access and use of the Product.

The Manager is a software program to connect your mobile device (the “Device”) to Wearable Device and let you manage, control or update the software of the Wearable Device through the Device. The Wearable Device requires the use of preloaded software in its normal operation. By using the Wearable Device, the Manager or its preloaded software, you accept the terms of this Agreement. If you do not accept these terms, do not use the Wearable Device, the Manager or its preloaded software.

GRANT OF LICENSE
Samsung grants you a limited non-exclusive license to install, use, access, display and run one copy of the Samsung Software on a single Product, local hard disk(s) or other permanent storage media of one computer and you may not make Samsung Software available over a network where it could be used by multiple computers or Products at the same time. You may make one copy of the Samsung Software in machine readable form for backup purposes only; provided that the backup copy must include all copyright or other proprietary notices contained on the original.

While the Updates will be generally available, in some limited circumstances, the Updates will only be offered by your network carrier, and such Updates will be governed by your contractual relationship with your network carrier. This EULA will not affect your legal relationship with your network carrier. Your SIM card stores information about your service plan with your provider, and this information is tied to the device on which the SIM is activated. If you move your SIM to another device, you will not receive Updates unless you update your service plan with the new device.

Your Product may download certain Updates automatically from time to time through Wi-Fi or other network connection. You may change the settings in your Product to manually download the Updates, however, given the importance of receiving Updates for security or safety related software in a timely manner, to resolve critical problems reported to Samsung, and to defend against new threats and vulnerabilities, these Updates may be automatically downloaded and installed which may limit the usage of some software and/or hardware. Where an Update will materially alter the Samsung Software, Samsung will provide you with notice of the Update, where practicable. Updates may result in data consumption, and we recommend you switch to a free Wi-Fi or free network connection to avoid any unintended data charges. We recommend you check availability of any new Updates periodically for optimal use of your Product.

The services and/or features provided by Wearable Device may vary or be limited depending on your country, Device model or network operator.

The Wearable Device and Manager may contain, or may be compatible with certain Software for general wellness and fitness management (“Fit Software”). The Wearable Device and the Fit Software is intended for recreational purpose only, and is not intended for use in the diagnosis of disease or other conditions, or in the cure, mitigation, treatment, or prevention of disease or any other medical purposes.Certain data derived from the Fit Software is for informational purposes only and is not intended to be treated as a medical device nor replace the relationship between you and your physician or other medical provider. Do not disregard professional medical advice nor delay in seeking it because of something you have learned through the Fit Software.

Samsung is not liable for any injuries, damages, losses and/or costs suffered by users, which are associated with the services and/or information, including recommendations, coaching, tips and/or guidelines, nor for the accuracy of any information provided or acquired by or accessed through Fit Software. Samsung is not responsible for the accuracy of information contained in any articles or materials appearing on external third party websites or reference materials, or for the security or safety of using them. Reference to information contained on external third party websites or reference materials should be taken neither as an endorsement of the accuracy of that information nor as an endorsement of the contents of that site or reference generally.

Third party services may also be available to you. Samsung disclaims any warranty or representation to the Fit Software and any third party services’ contents , accuracy, completeness, effectiveness, compliance of any applicable laws or regulations.

1. Privacy Policy. Collection of data using software or applications on your device will be performed in accordance with the provisions of this section and as set forth in Samsung’s Privacy Policy. For your reference, Samsung’s Privacy Policy can be viewed at: http://account.samsung.com/membership/pp.
2. To provide Updates, you agree that Samsung and its affiliates may collect and use technical information gathered as part of the product support services related to the Software provided to you, if any, such as IMEI (your device's unique identification number), device number, model name, customer code, access recording, your device's current software version, MCC (Mobile Country Code), and MNC (Mobile Network Code). Samsung may use this information to improve their products or to provide customized services or technologies to you and will not disclose this information in a form that personally identifies you.
3. Diagnostic and Usage Data. If you opt in to diagnostic and usage collection, Samsung and its affiliates may collect maintain, process and use diagnostic, technical and usage related information (“Diagnostic and Usage Data”), that is gathered to provide and improve Samsung products and services, facilitate the provision of Updates, product support and other services to you, if any, related to the Samsung Software, and to verify compliance with the terms of this License. Samsung may use this information for the purposes described above and in accordance with its Privacy Policy available at the hyperlink above.
4. Location Data. As described in the Samsung Privacy Policy, available for view at the hyperlink above, Samsung and its partners, licensees and third party developers may provide certain services that rely upon location information, such as your device’s GPS signal or information about nearby Wi-Fi access points and cell towers that may be transmitted to us, with your consent, when you use such location enabled services.
5. Device Identifier-based Services. To facilitate the use of enhanced messaging and file sharing functions with a simplified set up process, device identifier-based services for file sharing features and messaging features (“Device Identifier-based Services”) are provided within the Samsung Software. These features are available through existing interfaces of Contacts and Messages, respectively, as additional features to them. If you opt-in to Device Identifier-based Services, certain unique identifiers for your Product are needed to set up and use these features. These unique identifiers may include hardware identifiers, subscription information and telephone number for your Product. If you allow sharing of Contacts information, the telephone numbers of the people in your Contacts are collected by Samsung to facilitate file sharing and messaging with the people in your Contacts. You may turn off this sharing feature or restrict the scope of the sharing under your profile settings. If your message cannot be sent as a message using the Device Identifier-based Services, your message may be sent as an SMS or MMS message, for which carrier messaging rates may apply.
6. Voice-based Features. As described in the Samsung Privacy Policy, available for view at the hyperlink above, in order to provide Voice-based features we may require the collection of your voice information. Some voice-based services may not be available in all languages or in all countries.
7. Samsung Keyboard. If you opt in to the Predictive text feature, the words that you type are collected and stored on your Product to provide a word suggestion that you would be typing. You can clear the collected typing data anytime under the Predictive text settings. This feature may be offered in connection with your Samsung Account to synchronize the data for use on your other Products and you can also clear the server side data under the Predictive text settings.

You expressly acknowledge and agree that use of Third Party Materials is at your sole risk and that the entire risk of unsatisfactory quality, performance, accuracy and effort is with you. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Third Party Materials), in any manner, and you shall not exploit the Third Party Materials in any unauthorized way whatsoever, including but not limited to, using the Third Party Materials to transmit any computer viruses, worms, Trojan horses or other malware, or by trespassing or burdening network capacity. You further agree not to use the Third Party Materials in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Samsung is not in any way responsible for any such use by you, nor for any harassing, threatening, defamatory, offensive, infringing or illegal messages or transmissions that you may receive as a result of using any of the Third Party Materials. References on this Product to any names, marks, products, or services of any third-parties are provided solely as a convenience to you, and do not constitute or imply an endorsement, sponsorship, or recommendation of, or affiliation with the third party or its products and services. You acknowledge and agree that the use of any Third Party Materials is governed by such Third Party Materials provider’s terms of use, license agreement, privacy policy, or other such agreement and that any information or personal data you provide, whether knowingly or unknowingly, to such Third Party Materials provider, will be subject to such Third Party Materials provider’s privacy policy, if such a policy exists. This EULA will not affect your legal relationship with such third party providers.

You and Samsung each agree that, subject to Samsung’s right to apply for injunctive remedies set forth in Paragraph 15 above, all disputes between you and Samsung relating in any way to or arising in any way from the Standard Limited Warranty or the sale, condition or performance of the Product shall be resolved exclusively through final and binding arbitration, and not by a court or jury. Any such dispute shall not be combined or consolidated with a dispute involving any other person’s or entity’s product or claim, and specifically, without limitation of the foregoing, shall not under any circumstances proceed as part of a class action. The arbitration shall be conducted before a single arbitrator, whose award may not exceed, in form or amount, the relief allowed by the applicable law.

The arbitration shall be conducted according to the American Arbitration Association (AAA) Commercial Arbitration Rules applicable to consumer disputes. The AAA Rules are available online at adr.org or by calling the AAA at 1-800-778-7879. This Agreement is entered into pursuant to the Federal Arbitration Act. The laws of the State of New York, without reference to its choice of law principles, shall govern the interpretation of the Agreement and all disputes that are subject to this Agreement. The arbitrator shall decide all issues of interpretation and application of this Agreement.

For any arbitration in which your total damage claims, exclusive of attorney fees and expert witness fees, are $5,000.00 or less (“Small Claim”), the arbitrator may, if you prevail, award your reasonable attorney fees, expert witness fees and costs as part of any award, but may not grant Samsung its attorney fees, expert witness fees or costs unless it is determined that the claim was brought in bad faith. In a Small Claim case, you shall be required to pay no more than half of the total administrative, facility and arbitrator fees, or $50.00 of such fees, whichever is less, and Samsung shall pay the remainder of such fees. Administrative, facility and arbitrator fees for arbitrations in which your total damage claims, exclusive of attorney fees and expert witness fees, exceed $5,000.00 (“Large Claim”) shall be determined according to AAA rules. In a Large Claim case, the arbitrator may grant to the prevailing party, or apportion among the parties, reasonable attorney fees, expert witness fees and costs to the extent allowed by the applicable law. Judgment may be entered on the arbitrator’s award in any court of competent jurisdiction.

This Agreement also applies to claims against Samsung’s employees, representatives, parents, and other affiliates if any such claim relates to or arises from the EULA, Standard Limited Warranty, or the Product’s sale, condition or performance.

You may opt out of this Agreement by providing notice to Samsung no later than 30 calendar days from the date of the first consumer purchaser’s purchase of the Product. To opt out, you must send notice by e-mail to optout@sea.samsung.com, with the subject line: “EULA Arbitration Opt Out.” You must include in the opt out e-mail (a) your name and address; (b) the date on which the Product was purchased; (c) the Product model name or model number; and (d) the IMEI or MEID or Serial Number, as applicable, if you have it (the IMEI or MEID or Serial Number can be found (i) on the Product box; (ii) on the Product information screen, which can be found under “Settings;” (iii) on a label on the back of the Product beneath the battery, if the battery is removable; and (iv) on the outside of the Product if the battery is not removable).