CLICK WRAP SOFTWARE LICENSE AGREEMENT
INFORMATION BUILDERS ("IBI") IS WILLING TO GRANT YOU A LICENSE TO THE SOFTWARE AND ACCOMPANYING DOCUMENTATION YOU HAVE ORDERED ON THE CONDITION THAT YOU ACCEPT ALL OF THE TERMS CONTAINED HEREIN. THE LICENSE SHALL BE GRANTED PURSUANT TO EITHER: (A) THE TERMS OF AN APPLICABLE MUTUALLY EXECUTED MASTER SOFTWARE LICENSE AGREEMENT ("MSLA''); OR THE TERMS OF THIS CLICK WRAP SOFTWARE LICENSE AGREMEENT ("CWSLA"). IN THE EVENT THAT IBI DETERMINES, IN ITS SOLE AND EXCLUSIVE JUDGEMENT, THAT AN APPLICABLE MASTER SOFTARE LICENSE AGREEMENT IS IN PLACE (THE "MSLA"), THEN THE TERMS OF THE MSLA SHALL APPLY AND SHALL SUPERSEDE THE TERMS OF THIS CWSLA . IF IN ITS SOLE AND EXCLUSIVE JUDGEMENT IBI DETERMINES THAT AN APPLICABLE MSLA IS NOT IN PLACE, THEN THE TERMS OF THIS CWSLA SHALL APPLY AND SHALL GOVERN YOUR USE OF THE SOFTWARE.
IMPORTANT NOTICE TO CUSTOMERS ENCOUNTERING THE DISPLAY OF THIS CWSLA DURING AN INSTALL: READ ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN CAREFULLY BEFORE ACCEPTING THESE TERMS. YOU ACCEPT THE TERMS BY EITHER: (A) CLICKING ON THE "YES" BUTTON BELOW (WINDOWS PLATFORM INSTALLS); (B) REPLYING "YES" WHERE INDICATED (NON-WINDOWS PLATFORM INSTALLS); OR (C) PROCEEDING OTHERWISE WITH THE INSTALLATION. BY PROCEEDING WITH THE INSTALLATION, YOU ACKNOWLEDGE THAT YOU ARE ACCEPTING AND AGREEING TO ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN. IF YOU ARE NOT WILLING TO BE BOUND BY THESE TERMS AND CONDITIONS, YOU MUST PROMPTLY TERMINATE THE INSTALLATION PROCEDURE BY CLICKING "NO" OR REPLYING "NO" TO EXIT.
IN THE EVENT IBI DETERMINES, IN ITS SOLE AND EXCLUSIVE JUDGEMENT, THAT AN APPLICABLE MUTUALLY ACCEPTED MSLA IS NOT IN PLACE, THEN THE TERMS OF THIS CWSLA REPRESENTS THE ENTIRE AGREEMENT CONCERNING THE SOFTWARE BETWEEN YOU AND IBI, AND THE CWSLA SUPERSEDES ANY PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES. IN ADDITION TO THE ABOVE, THE FOLLOWING TERMS APPLY UNDER THE CWSLA:
Unless otherwise set forth on the applicable Rider to the MSLA, or on a purchase order which has been accepted by IBI (IBI reserves the right to reject any purchase order within a reasonable period of time), this License grants you the right to use the Software on the single computer identified in the Rider to the MSLA or your purchase order by Model Number, Serial Number and installation location, such grant permits use on only one computer at any time. If you have multiple licenses for the Software, then at any one time you may have as many copies of the Software in use as you have licenses. The Software is in use on a computer when it is loaded into the temporary memory (i.e., RAM) or installed into the permanent memory (e.g., hard disk or other storage device) of that computer, except that a copy installed on a network server for the sole purpose of access from a computer terminal or workstation for which a separate license is required is not considered "in use." You may not use the Software to process work for any party other than yourself if you are the holder of an individual license for your company's own internal business purposes if the licensee is a company. Under no circumstances may the Software be used for purposes of performing service bureau work or on a time-share basis or rental or lease basis or be sold by the licensee, whether or not for consideration.
Upgrade Fees. You agree that upgrade fees may apply in the event pricing parameter which applies to a license acquired hereunder is exceeded. You agree to promptly notify IBI in writing in the event you exceed any applicable licensing parameter, such as: (a) An increase in the number of copies licensed; (b) a change to a computer in a higher hardware classification; (c) An increase in the number of permitted Users. A "User" shall mean a specific individual employed by the licensee who you have authorized to use the Software, regardless of whether the individual is actively using the Software at any time; (d) an increase in the number of permitted Images. An "Image" is defined as a single instance or installation of the licensed Software, operating on an authorized computer; (e) An increase in the number of "Connected Instances". Certain iWay Software items are priced based on the number of connections to an application software package such as SAP, or a transaction system such as CICS. Each connection is referred to as an "Instance"; (f) An increase in the number of physical or virtual "Cores". Some Windows / Intel, UNIX or Linux based servers have a multicore chip set. A multicore server has a single chip which contains multiple processors, referred to as Cores. Some Intel based servers employ hyper-threading technology which allows virtual processors to be defined from one or more physical processors. For licensing purposes each virtual processor created via hyper-threading must be licensed, as opposed to the number of physical processors.
EXCEPT FOR THE LIMITED WARRANTY AS TO THE MEDIA, THE SOFTWARE IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED. THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE ENTIRE RISK AS TO THE FITNESS, QUALITY, AND PERFORMANCE OF THE SOFTWARE IS WITH YOU. IBI DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE.
IBI SHALL NOT HAVE ANY LIABILITY FOR ANY KIND OF DAMAGES FOR LOST PROFITS, WHETHER DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, THE SOFTWARE DOCUMENTATION, OR ANY SERVICES PROVIDED IN CONNECTION THEREWITH, EVEN IF IBI HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING.
If, notwithstanding the above disclaimers, IBI is found liable as a consequence of the use or performance of the Software, the Software Documentation or services provided (whether based on contract, negligence, tort, strict liability, breach of warranty, or any other legal theory of liability whatsoever), the amount of IBI's liability shall not exceed the license fee paid by you for your license for the Software.
Some jurisdictions do not allow excluding or limiting implied warranties or limiting liability for incidental or consequential damages, and some jurisdictions have special statutory consumer protection provisions that may supersede the limitations in this Section. As a result, these imitations may not apply to you if prohibited by the laws of your jurisdiction.
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