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EMBASSY Security Center END USER LICENSE AGREEMENT

You should carefully read the following terms and conditions of this agreement (the Agreement) before using the Wave Systems Corp. (Wave) EMBASSY Security Center (together with all related features, applications, upgrades (if any) and documentation, the Software), the TDTlib.dll owned by Seagate Technology LLC (Seagate) and the ACS library owned by Gemalto Corp. (Gemalto).  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.

By clicking the I Accept check box and completing the process of installing the Software, you 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 then uninstall the Software.

1.    Software License

The EMBASSY Security Center is owned by Wave and Wave is authorized by Seagate to sublicense TDTlib.dll and by Gemalto to sublicense ACS.

The Software is licensed to you on a non-exclusive, 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.  No license is granted to you for the human readable code of the Software (source code).  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.  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 on a single personal computer owned or controlled by you for your own use.  You may not modify, copy, distribute, transmit, duplicate or otherwise reproduce the Software, except that you may make a single copy for back-up purposes only, which copy must contain all copyright and other proprietary notices present in the original 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, (ii) Wave publicly posts a written notice of termination on its website www.wave.com (that, or any successor site, the Site); or (iii) Wave revokes this Agreement or issues a new agreement in writing or electronic form and conditions your continued use of the Software upon acceptance of the new agreement.  All changes, modifications, additions or deletions shall be effective immediately upon notice thereof, which may be given by means including, but not limited to, posting on the Site, or by electronic or conventional mail, or by any other means by which you may obtain notice thereof.  Use of the Software after such notice constitutes acceptance of such changes, modifications or additions.

    (b)     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.  However, if you are located in a Member State of the European Community or in any other jurisdiction where applicable law is analogous to the EC Software Directive and need information about the Software in order to achieve interoperability of an independently created software program with the Software, you shall first request such information from Wave.  Unless Wave refuses to make such information available, you shall not take any steps, such as reverse assembly or reverse compilation, to derive a source code equivalent to the Software.  Wave may charge a reasonable fee for the provision of such information.  In the event that Wave does not provide such information, then your right to reverse engineer shall be limited to the extent required by the EC Software Directive or other applicable law.  You may not incorporate the Software into any other software, computer chip or the firmware of a computing device manufactured by or for you.  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 except that you may permanently transfer all of your rights under this Agreement, provided that you transfer all of the Software and retain no copies and the transferee agrees to the terms of this Agreement in writing; or

        (iii)    use, acquire, ship, transport, export, or re-export the Software, except as authorized by Wave and 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.

    (c)    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.

Portions of this work are subject to the following copyright: Copyright (C) 2007 DigitalPersona, Inc. All Rights Reserved.

2.    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 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.

3.    Limitation on Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT WAVE, TO THE MAXIMUM EXTENT PERMITTED BY LAW, SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (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), RESULTING FROM: (a) THE USE OR THE INABILITY TO USE THE SOFTWARE (OR ANY PART THEREOF); (b) TRANSACTIONS ENTERED INTO USING THE SOFTWARE (OR ANY PART THEREOF); (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (d) ANY OTHER MATTER RELATING TO THE SOFTWARE OR YOUR USE THEREOF.  IN NO EVENT WILL THE AGGREGATE AMOUNT OF WAVE'S DAMAGES TO YOU EXCEED (COLLECTIVELY) $100 OR THE AMOUNT OF ANY PAYMENTS MADE DIRECTLY BY YOU TO WAVE FOR THE SOFTWARE, IF ANY, WITHIN ONE (1) YEAR PRIOR TO THE DATE ANY SUCH LIABILITY IS INCURRED, WHICHEVER IS GREATER. 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.

4.    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.  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.

5.    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 trademarks and service marks and other Wave logos and Software 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, 4, 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, and 5 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.