ThinAnywhere(R) End User Agreement for Client Software

End User Agreement for Client Software

MERCURY INTERNATIONAL TECHNOLOGY, INC.

ThinAnywhere® License Agreement

BY CLICKING THE ACCEPTANCE BUTTON OR INSTALLING THE SOFTWARE, YOU ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT.  IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE BUTTON THAT INDICATES YOU DO NOT ACCEPT THE TERMS AND DO NOT INSTALL THE SOFTWARE.  IF THE COPY OF THE SOFTWARE YOU RECEIVED WAS ACCOMPANIED BY A PRINTED OR OTHER FORM OF "HARD-COPY" END USER LICENSE AGREEMENT WHOSE TERMS VARY FROM THIS AGREEMENT, THEN THE HARD-COPY END USER LICENSE AGREEMENT GOVERNS YOUR USE OF THE SOFTWARE.

THE ThinAnywhere® CLIENT SOFTWARE AGREEMENT

REDISTRIBUTION OR RENTAL NOT PERMITTED

This Agreement sets forth the terms and conditions of your use of the accompanying ThinAnywhere® Client Software and associated third party software, if any.  Mercury International Technology, Inc. (MIT) shall be the LICENSOR.

PART I - TERMS APPLICABLE WHEN FEES HAVE BEEN PAID

LICENSE GRANT.  Subject to payment of applicable ThinAnywhere® License fees as defined, LICENSOR grants to you a non-exclusive perpetual license to use the ThinAnywhere® Client Software, including the accompanying printed or electronic documentation, ("Documentation"), in the manner described in below under "Scope of Grant."

LIMITED WARRANTY.  LICENSOR warrants that for a period of ninety (90) days from the date of acquisition, the ThinAnywhere® Client Software, if operated as directed, will substantially achieve the functionality described in the Documentation.  LICENSOR does not warrant, however, that your use of the ThinAnywhere® Client Software will be uninterrupted or that the operation of the ThinAnywhere® Client Software will be error-free or secure.  In addition, the security mechanisms implemented by the ThinAnywhere® Client Software have inherent limitations, and you must determine that the ThinAnywhere® Client Software sufficiently meets your requirements.

LICENSOR also warrants that the media containing the ThinAnywhere® Client Software, if provided by LICENSOR, is free from defects in material and workmanship and will so remain for ninety (90) days from the date you acquired the ThinAnywhere® Client Software.  LICENSOR's sole liability for any breach of this warranty shall be, in LICENSOR's sole discretion: (i) to replace your defective media or ThinAnywhere® Client Software; or (ii) to advise you how to achieve substantially the same functionality with the ThinAnywhere® Client Software as described in the Documentation through a procedure different from that set forth in the Documentation; or (iii) if the above remedies are impracticable, to refund the license fee you paid for the ThinAnywhere® Client Software. Repaired, corrected, or replaced ThinAnywhere® Client Software and Documentation shall be covered by this limited warranty for the period remaining under the warranty that covered the original ThinAnywhere® Client Software, or if longer, for thirty (30) days after the date (a) of delivery to you of the repaired or replaced ThinAnywhere® Client Software, or (b) LICENSOR advised you how to operate the ThinAnywhere® Client Software so as to achieve substantially the same functionality described in the Documentation.

Only if you inform LICENSOR of your problem with the ThinAnywhere® Client Software during the applicable warranty period and provide evidence of an active subscription with LICENSOR's service will LICENSOR be obligated to honor this warranty. LICENSOR will use reasonable commercial efforts to repair, replace, advise or, for individual consumers, refund pursuant to the foregoing warranty within thirty (30) days of being so notified. If any modifications are made to the ThinAnywhere® Client Software by you during the warranty period; if the media is subjected to accident, abuse, or improper use; or if you violate the terms of this Agreement, then this warranty shall immediately terminate. Moreover, this warranty shall not apply if the ThinAnywhere® Client Software is used on or in conjunction with hardware or software other than the unmodified version of hardware and software with which the ThinAnywhere® Client Software was designed to be used as described in the Documentation.

THIS IS A LIMITED WARRANTY, AND IT IS THE ONLY WARRANTY MADE BY LICENSOR OR ITS SUPPLIERS. LICENSOR MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF THIRD PARTIES' RIGHTS. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE ABOVE LIMITED WARRANTY PERIOD. MOREOVER, IN NO EVENT WILL WARRANTIES PROVIDED BY LAW, IF ANY, APPLY UNLESS THEY ARE REQUIRED TO APPLY BY STATUTE NOTWITHSTANDING THEIR EXCLUSION BY CONTRACT. NO DEALER, AGENT, OR EMPLOYEE OF LICENSOR IS AUTHORIZED TO MAKE ANY MODIFICATIONS, EXTENSIONS, OR ADDITIONS TO THIS LIMITED WARRANTY.

SCOPE OF LICENSE GRANT.

Violation of any provision of this agreement may result in serious legal consequences in addition to termination of this agreement.

The goal of ThinAnywhere is to remote applications from heterogeneous networks.  When using ThinAnywhere on Windows or Windows Terminal Server systems, users should carefully read their license agreements with Microsoft and cunsult with legal counsel when determining Windows and RDP license requirements.  MIT offers no representations, warranties or opinions regarding Microsoft RDP licensing requirements.

You may:

· use the ThinAnywhere® Client Software on your computers;

You may not:

· permit other individuals to use the Software except under the terms listed above;

· modify, translate, reverse engineer, decompile, disassemble  (except and solely to the extent an applicable statute expressly and specifically prohibits such restrictions), or create derivative works based on the Software;

· copy the Software other than as specified above;

· rent, lease, grant a security interest in, or otherwise transfer rights to the Software; or

· remove any proprietary notices or labels on the Software.

TITLE.  Title, ownership rights, and intellectual property rights in the ThinAnywhere® Client Software shall remain in Mercury International Technology, Inc. (MIT). The ThinAnywhere® Client Software is protected by copyright and other intellectual property laws and by international treaties. Title and related rights in the content accessed through the ThinAnywhere® Client Software is the property of the applicable content owner and is protected by applicable law. The license granted under this Agreement gives you no rights to such content.

TERMINATION.  This Agreement and the license granted hereunder will terminate automatically if you fail to comply with the limitations. described herein. Upon termination, you must destroy all copies of the ThinAnywhere® Client Software and Documentation.

EXPORT CONTROLS.  None of the ThinAnywhere® Client Software or underlying information or technology may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Iraq, Libya, Sudan, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Denial Orders.  By downloading or using the ThinAnywhere® Client Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. In addition, you are responsible for complying with any local laws in your jurisdiction, which may impact your right to import, export or use the ThinAnywhere® Client Software. If the ThinAnywhere® Client Software is identified as a not-for-export product (for example, on the box, media or in the installation process), then, unless you have an exemption from the United States Department of State, the following applies: EXCEPT FOR EXPORT TO CANADA FOR USE IN CANADA BY CANADIAN CITIZENS, THE SOFTWARE AND ANY UNDERLYING TECHNOLOGY MAY NOT BE EXPORTED OUTSIDE THE UNITED STATES OR TO ANY FOREIGN ENTITY OR "FOREIGN PERSON" AS DEFINED BY U.S. GOVERNMENT REGULATIONS, INCLUDING WITHOUT LIMITATION, ANYONE WHO IS NOT A CITIZEN, NATIONAL OR LAWFUL PERMANENT RESIDENT OF THE UNITED STATES. BY DOWNLOADING OR USING THE SOFTWARE, YOU ARE AGREEING TO THE FOREGOING AND YOU ARE WARRANTING THAT YOU ARE NOT A "FOREIGN PERSON" OR UNDER THE CONTROL OF A "FOREIGN PERSON."

LIMITATION OF LIABILITY.  UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL LICENSOR OR ITS SUPPLIERS OR RESELLERS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES. IN NO EVENT WILL LICENSOR BE LIABLE FOR ANY DAMAGES IN EXCESS OF THE AMOUNT LICENSOR RECEIVED FROM YOU FOR A LICENSE TO THE SOFTWARE, EVEN IF LICENSOR SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. THIS LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM LICENSOR'S NEGLIGENCE TO THE EXTENT APPLICABLE LAW PROHIBITS SUCH LIMITATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS EXCLUSION AND LIMITATION MAY NOT APPLY TO YOU.

HIGH RISK ACTIVITIES.  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 weapons systems, in which the failure of the Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, LICENSOR and its suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.

MISCELLANEOUS.  This Agreement represents the complete agreement concerning the license granted hereunder and may be amended only by a writing executed by both parties. THE ACCEPTANCE OF ANY PURCHASE ORDER PLACED BY YOU IS EXPRESSLY MADE CONDITIONAL ON YOUR ASSENT TO THE TERMS SET FORTH HEREIN, AND NOT THOSE IN YOUR PURCHASE ORDER. If any provision of this Agreement is held to be unenforceable, such provision shall be reformed only to the extent necessary to make it enforceable. This Agreement shall be governed by Oklahoma law, excluding conflict of law provisions (except to the extent applicable law, if any, provides otherwise). Any Litigation regarding this agreement shall take place in Tulsa County Oklahoma, USA.  Both parties agree to wave any objections with regard to venue.  The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.