SCRAMBLS END USER LICENSE AGREEMENT
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:
(a) YOU MAY
ONLY install and personally use the Software and any updates thereto
furnished by Wave (in its sole discretion) in object code form for
your own use solely in connection with the Scrambls service. You
may not modify, copy, distribute, transmit, duplicate or otherwise
reproduce the Software or remove any copyright and other proprietary
notices present in the Software. Your license to the Software under
this Agreement continues until it is terminated by you or Wave. You
may terminate the license by discontinuing use of all or any of the
Software and by destroying all your copies of the Software. This
Agreement will terminate automatically if (i) you violate any of the
terms or conditions of this Agreement or the Scrambls Terms of Use,
or (ii) Wave publicly posts a written notice of termination on the
Scrambls website www.scrambls.com (that, or any successor site, the
“Site”). Wave may issue a new agreement in writing or electronic
form and will condition your future use of newly-downloaded Software
upon acceptance of the new agreement. All modifications or forms of
new agreement shall be effective thirty (30) days after Wave’s
notice thereof on the Site, by electronic or conventional mail, or by
any other means by which you may obtain notice thereof. Use of the
Software after thirty (30) days of such notice constitutes acceptance
of such modifications or form of new agreement.
(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.
5. Indemnification
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.
6. Miscellaneous
(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:
None
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