SCRAMBLS END USER LICENSE AGREEMENT
Last modified August 20, 2012
You should carefully read the following terms and conditions of this agreement (the “Agreement”) before using the Wave Systems Corp. (Wave) Scrambls software (together with all related features, applications, upgrades (if any) and documentation, the “Software”). Your use of the Software is subject to your agreement to all of the terms and conditions of this Agreement, which is between you and Wave. For purposes of this Agreement "you" shall mean all licensees who use the Software and who are afforded all rights and bound by all terms under the Agreement.
By proceeding with sign-up to the scrambls service and completing the process of installing the Software, you acknowledge that you have read, understood, consent to and agree to be bound by all of the terms and conditions of this Agreement. If you disagree with any of the terms or conditions of this Agreement, you are not permitted to install and/or use the Software. Click on the “I Reject” button to cancel and exit and then uninstall the Software.
1. Software License
The Software is licensed to you on a non-exclusive, non-assignable, non-sublicenseable basis on the terms and conditions set forth in this Agreement. You are not permitted to lease or rent, distribute or sublicense the Software or to use the Software in a time-sharing arrangement or in any other unauthorized manner. Other than with respect to the Public Software (defined in Section 2 below), no license is granted to you for the human readable, or source, code of the Software. Except as expressly provided in this Section 1, this Agreement does not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the Software. Wave reserves all rights not expressly granted to you. Subject to Section 2, the following conditions and restrictions also apply:
(b) Except with respect to your use of the Public Software as separate and independent from the Software, YOU MAY NOT decompile, reverse engineer, disassemble, modify, or create derivative works (as defined by the U.S. Copyright Act) or improvements (as defined by U.S. patent law) from the Software or any portion thereof, or seek to obtain intellectual property protection on the Software or any portion thereof. You also may not, under any circumstances:
(i) use the Software in any unlawful manner, for any unlawful purpose or in any manner inconsistent with this Agreement;
(ii) transfer your rights under this Agreement to another person or entity ; or
(iii) use, acquire, ship, transport, export, or re-export the Software, except as permitted by applicable law. In particular, but without limitation, the Software may not be acquired, shipped, transported, exported, or re-exported (1) into (or to a national or resident of) any U.S. embargoed country or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders. You represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list.
(d) Mandatory Upgrades. Wave may from time to time and at any time provide you (whether electronically by email or otherwise) with upgrades to the Software. Your continued ability to use the Software may be subject to and conditioned on your permitting Wave to install such upgrades or your prompt installation of them, as the case may be.
2. Public Software
You understand that the Software contains or is distributed with certain computer programs that are publicly available and that are distributed as part of the Software and for which the source code is written by persons or entities other than employees of Wave or contractors under the direction of Wave (the “Public Software”). The Public Software is listed in Exhibit A. (For purposes of this Agreement, the Software and any Public and other third party Software, together, shall be referred to as the “Software”.) If the Software contains any software provided by third parties not described as “Public Software” in Exhibit A, the restrictions contained in this Agreement shall apply to all such third party software providers and third party software as if they were Wave’s and the Software’s, respectively.
You acknowledge and agree that your use and distribution of any such Public Software is subject to the terms of the applicable Public Software license(s), and that you are responsible for your compliance with the terms of such Public Software license(s). You expressly acknowledge and agree that, prior to using the Public Software for any other purpose, and in any case before copying, modifying, or distributing any Public Software, you will confirm that you have all necessary rights and permissions to do so from the applicable third party licensor (the “Licensor”), which confirmation may include obtaining a separate license from the Licensor expressly authorizing you to do so.
3. Disclaimer of Warranties
THE SOFTWARE IS PROVIDED AS IS AND WITHOUT WARRANTIES OF ANY KIND WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN. WAVE DOES NOT REPRESENT OR WARRANT THAT THE SOFTWARE, OR ANY PORTION THEREOF, COMPLIES WITH ANY OR ALL FEDERAL, STATE OR OTHER LAWS AND EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES AND/OR OBLIGATIONS (EXPRESS OR IMPLIED) FOR THE SOFTWARE OR ANY PORTION THEREOF, INCLUDING WITHOUT LIMITATION ANY REPRESENTATIONS WARRANTIES AND/OR OBLIGATIONS: (i) OF ACCURACY, TIMELINESS, RELIABILITY, COMPLETENESS, INTEGRATION, ADEQUACY, TITLE, COMPATIBILITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (ii) THAT THE SOFTWARE WILL OPERATE ERROR-FREE, CONTINUOUSLY OR WITHOUT INTERRUPTION OR IS OR WILL BE SECURE AND FREE OF COMPUTER VIRUSES OR OTHER HARMFUL CONTENT; (iii) THAT THE SOFTWARE AND/OR THE TRANSACTIONS ENTERED INTO USING THE SOFTWARE WILL BE FREE FROM MANIPULATION AND/OR FRAUD; iv) THAT DATA COMMUNICATED USING THE SOFTWARE WILL BE SECURE AND/OR THAT THE ENCRYPTION PROVIDED BY THE SOFTWARE WILL NOT OR CANNOT BE BROKEN; AND (iv) THAT MAY ARISE BY USAGE OF TRADE, COURSE OF DEALING, OR COURSE OF PERFORMANCE.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SOFTWARE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR EQUIPMENT AND/OR YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM SUCH MATERIAL AND/OR DATA. WAVE MAKES NO WARRANTY, AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR, ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH OR USING THE SOFTWARE OR ANY TRANSACTIONS ENTERED INTO USING THE SOFTWARE. YOU FURTHER UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA STORED ON YOUR COMPUTER SYSTEM THROUGH USE OF THE SOFTWARE WILL BE ENCRYPTED AND THAT YOU WILL NOT BE ABLE TO RETRIEVE SUCH MATERIAL OR DATA WITHOUT YOUR PASSWORD/PIN. WAVE MAKES NO WARRANTY AND EXPRESSLY DISCLAIMS ANY LIABILITY FOR YOUR ABILITY OR INABILITY TO RETRIEVE ANY DATA OR OTHER MATERIAL STORED ON YOUR COMPUTER SYSTEM.
THE SOFTWARE IS NOT FAULT-TOLERANT AND IS NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE OR RESALE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, DIRECT LIFE SUPPORT MACHINES OR WEAPON SYSTEMS IN WHICH THE FAILURE OF THE SOFTWARE COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OR EXCLUSIONS OF WARRANTIES IN SOME CIRCUMSTANCES. ACCORDINGLY, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
4. Limitation on Liability
4.1 No Liability: YOU ACKNOWLEDGE AND AGREE THAT WAVE WILL HAVE NO LIABILITY WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT NOTICE OF THE POSSIBILITY OF SUCH DAMAGES HAS BEEN PROVIDED TO WAVE, IN CONNECTION WITH OR ARISING FROM YOUR USE OF THE SOFTWARE. YOUR ONLY RIGHT OR REMEDY WITH RESPECT TO ANY PROBLEMS OR DISSATISFACTION WITH THE SCRAMBLS SERVICE, THE SCRAMBLS WEBSITE IS TO IMMEDIATELY UNINSTALL SUCH SOFTWARE AND CEASE USE OF THE SCRAMBLS SERVICE, THE SCRAMBLS WEBSITE OR SOFTWARE.
4.2 Limitation of Liability. SUBJECT TO SECTION 4.1, YOU EXPRESSLY UNDERSTAND AND AGREE THAT WAVE SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO: LOST PROFITS; LOST, DAMAGED OR CORRUPTED DATA; DAMAGES ARISING FROM OR RELATING TO ANY PRODUCT OR SERVICE PROVIDED BY A THIRD PARTY UNDER THEIR OWN TERMS OF SERVICE, ANY THIRD PARTY TECHNOLOGY OR WEBSITE; DAMAGE TO GOODWILL OR REPUTATION, EVEN IF WAVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR ANY REMEDY AVAILABLE TO YOU FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL WAVE’S LIABILITY EXCEED ONE HUNDRED U.S. DOLLARS ($100 USD) IN ALL CASES. SOME JURISDICTIONS DO NOT ALLOW CERTAIN LIMITATIONS OR EXCLUSIONS OF LIABILITY IN SOME CIRCUMSTANCES. ACCORDINGLY, SOME OF THE FOREGOING LIMITATIONS MAY NOT APPLY TO YOU.
You agree to indemnify and hold harmless Wave from and against any and all losses, damages, costs or expenses (including reasonable attorney's fees) (a) suffered by you related in any way to the Software or this Agreement and/or (b) related to any claim or demand made by any third party in connection with or arising out of (i) any breach by you of any of the terms and conditions of this Agreement, (ii) your use of misuse of the Software, (iii) your violation of applicable laws, and/or (iv) your violation of the rights of any other person or entity. You agree to promptly notify Wave of any claims brought against you relating to the above, and Wave reserves the right, at its own expense, to assume the exclusive defense and control of (but not liability for) any matter otherwise subject to indemnification by you. You will be liable to Wave for reasonable attorney's fees in any such case.
(a) This Agreement constitutes the entire understanding between the parties respecting use of the Software and supersedes all prior or contemporaneous understandings regarding such subject matter. No amendment to or modification of this Agreement will be binding unless made by an authorized Wave representative acting in his or her official capacity. Wave reserves the right to revise this Agreement from time to time and at any time and you are deemed to be aware of and bound by any such changes upon publication on the Site. No waiver by Wave of any breach of this Agreement by you shall operate as a waiver of any other breach.
(b) Notices of changes to this Agreement or other matters may be made to you by displaying notices or links to notices to you generally on the Site.
(c) The terms of this Agreement shall be construed and governed exclusively by the laws of the Commonwealth of Massachusetts, excluding the application of its conflict of law provisions and rules. Any dispute, controversy or claim between the parties arising out of or relating to this Agreement or a breach of this Agreement shall be settled pursuant to the terms of this Section 5(c) by arbitration before three neutral arbitrators (selected from a panel of persons having experience with and knowledge of the computer business), provided at least one of which arbitrators shall be an attorney, and administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules in Boston, Massachusetts. Any provisional or equitable remedy which would be available from a court of law shall be available from the arbitrators to the parties. Judgment upon the award of the arbitrators may be enforced in any court having jurisdiction thereof. The parties hereby consent to the non-exclusive jurisdiction of the courts of the Commonwealth of Massachusetts or to any Federal Court located within the Commonwealth of Massachusetts for any action (i) to compel arbitration, (ii) to enforce the award of the arbitrators or (iii) prior to the appointment and confirmation of the arbitrators, for temporary, interim or provisional equitable remedies, and to service of process in any such action by registered mail, return receipt requested, or by any other means provided by law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded.
(d) If the Software is supplied to or purchased by or on behalf of the United States Government, then the Software is deemed to be a Commercial Item, as that term is defined in 48 C.F.R. -2.101, consisting of Commercial Computer Software and Commercial Computer Software Documentation, as such terms are used in 48 C.F.R. -12.212 or 48 C.F.R. -227.7202, as applicable. Consistent with 48 C.F.R. -12.212 or 48 C.F.R. -227.7202-1 through 227.7202-4, as applicable, such Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions set forth in this Agreement.
(e) The Software contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Title, ownership rights and intellectual property rights in the Software shall remain in Wave or its licensors. You acknowledge such ownership and intellectual property rights and will not take any action to jeopardize, limit or interfere in any manner with Wave's or Wave's licensors' ownership of or rights with respect to the Software. The license granted under this Agreement gives you no rights in or to the Software other than as expressly granted herein.
(f) The Wave and Scrambls trademarks and service marks and other Wave and Scrambls logos and service names are trademarks of Wave Systems Corp. (collectively, the “Wave Marks”). Without Wave's prior permission, you may not display or use in any manner any Wave Mark.
(g) The failure of Wave to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of this Agreement remain in full force and effect.
(h) Except for claims arising out of a breach of Sections 1, 2 and 5 of this Agreement, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Software or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever barred.
(i) The section titles in this Agreement are for convenience only and have no legal or contractual effect.
(j) If any provision of this Agreement is declared by a court or tribunal of competent jurisdiction to be invalid, illegal, or unenforceable, such provision shall be severed from this Agreement and the other provisions shall remain in full force and effect.
(k) Sections 1(b), 2, 3, 4, 5 and 6 of this Agreement shall survive any termination or expiration of this Agreement.
(l) This Agreement may be supplied to you in United States English and other languages. In case of conflict between any of these versions, the United States English version shall govern.
YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT. IF YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK I ACCEPT. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, CLICK I REJECT.
EXHIBIT A – PUBLIC AND THIRD PARTY SOFTWARE
The Software includes the jQuery software, which is available for download from jquery.org. jQuery is made available under either the MIT License or the GPL, as stated at http://jquery.org/license. Wave is using the jQuery code under the terms of the MIT License, a copy of which is reproduced below:
JQuery, Copyright (c) 2012 John Resig, http://jquery.com/
Permission is hereby granted, free of charge, to any person obtaining
a copy of this software and associated documentation files (the
"Software"), to deal in the Software without restriction, including
without limitation the rights to use, copy, modify, merge, publish,
distribute, sublicense, and/or sell copies of the Software, and to
permit persons to whom the Software is furnished to do so, subject to
the following conditions:
The above copyright notice and this permission notice shall be
included in all copies or substantial portions of the Software.
THE SOFTWARE IS PROVIDED "AS IS", WITHOUT WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NONINFRINGEMENT. IN NO EVENT SHALL THE AUTHORS OR COPYRIGHT HOLDERS BE
LIABLE FOR ANY CLAIM, DAMAGES OR OTHER LIABILITY, WHETHER IN AN ACTION
OF CONTRACT, TORT OR OTHERWISE, ARISING FROM, OUT OF OR IN CONNECTION
WITH THE SOFTWARE OR THE USE OR OTHER DEALINGS IN THE SOFTWARE.
OTHER THIRD PARTY SOFTWARE: