END USER LICENSE AGREEMENT
IMPORTANT—SCROLL THROUGH AND READ ALL OF THE FOLLOWING TERMS AND CONDITIONS
In the event of any conflict or inconsistency between the terms and conditions of this Agreement and any terms or conditions set forth in the Purchase and Service Agreement, the terms and conditions set forth in the Purchase and Service Agreement shall prevail.
Last Update: October 2020
1. GRANT OF LICENSE. OpusXenta (“OpusXenta”) grants You a limited, non-exclusive, non-transferable (except as set forth in Section 3b below), non-sub-licensable license of the scope described in this Agreement to Use the Software only upon the following conditions:
a. You or someone acting on Your behalf and at Your direction has:
i. Placed an order with OpusXenta for either an initial license or an upgrade (such as for more users, additional modules, etc.), or a Service Plan, and OpusXenta has accepted such order and Enabled Use of the Software; and
ii. Accepted all of the terms and conditions of this Agreement either before or during installation of the Program. YOU WILL INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT AND ALL OF ITS TERMS AND CONDITIONS BY DOING ONE OR BOTH OF THE FOLLOWING OR ALLOWING OR AUTHORIZING A THIRD PARTY TO DO IT FOR YOU: (a) CLICKING "I AGREE" OR A SIMILAR AFFIRMATION, AS APPLICABLE THAT APPEARS DURING INSTALLATION OF THE PROGRAM, OR (b) USING THE PROGRAM.
b. IF YOU DO NOT AGREE TO BE LEGALLY BOUND BY THIS AGREEMENT (IN ITS ENTIRETY AND WITHOUT CHANGE TO OR ADDITION TO ITS TERMS AND CONDITIONS), THEN YOU DO NOT HAVE A LICENSE TO USE (AND YOU MUST NOT USE) THE SOFTWARE.
c. If You acquire a Software Subscription License, You may Use the Software only for the subscription period for which OpusXenta has received Your Software Subscription License fee.
d. If You purchase a Software License, You may Use the Software only if You pay the required Software License fee or fees when due.
e. If You access the Software under an Evaluation License prior to Your purchase of a Software Subscription License or a Software License, You acknowledge and agree that (i) You shall Use the Software only for evaluation purposes before purchasing a Software Subscription License or a Software License to determine if the Software is suitable for Your business, (ii) the Software may be Used and/or operable only for a limited time, (iii) the Software is provided “AS IS” with no express or implied warranties, and (iv) upon expiration of the Evaluation License, You acknowledge that OpusXenta is under no obligation to return to You any data processed by or stored in the Software and that all or some of such data may become irretrievable, unrecoverable and/or otherwise unusable by You after the evaluation period ends. Subsections 6a, 6b, and 6c of this Agreement do not apply to Evaluation Licenses.
2. DEFINITIONS. As used herein, the following terms have the following meanings:
a. “Affiliate” means any entity that controls You, that You control, or that is under common control with You, where “control” means the ownership, directly or indirectly, of equity securities or other ownership interests which represent more than 50% of the voting power of such affiliate.
b. “Agreement” means this OpusXenta End User License and Support Agreement, all applicable license fee invoices, and Service Plan information as described in Section 13, which are incorporated herein by reference and made a part hereof.
c. “Customer Support” means Software assistance You receive by phone, email, chat, access to on-line information, or by similar means because You purchased a Service Plan or a Software Subscription License.
d. “Documentation” means the Program specifications that are set forth in the Program help files and any release-related notes, guides or manuals OpusXenta publishes specific to the current version of the Program.
e. “Enabled Use” means that OpusXenta has fulfilled the applicable software delivery process (whether by shipping tangible goods including recorded media containing the Software, enabling downloading of the Software, delivering activation codes for the Software, or otherwise), thereby enabling Use of the Software.
f. “Evaluation License” means a time-limited license to Use the Software for evaluation purposes only to determine if it is suitable for Your business.
g. “Maintenance Software” means Software that OpusXenta delivers because You have purchased a Service Plan or a Software Subscription License.
h. “OpusXenta” means the OpusXenta company that publishes the Software.
i. “Program” means the computer program.
j. “Reseller” means the independent third party reseller from whom You may have acquired the Software.
k. “Software License” means a license to Use the Software according to this Agreement until this Agreement terminates as described herein.
l. “Software Subscription License” means a license to Use the Software and a Service Plan according to this Agreement until the specified term or subscription period ends or Your license or this Agreement terminates as described herein.
m. “Service Plan” means a plan You purchase separately or acquire as part of the purchase of a Software Subscription License providing You Customer Support and/or Maintenance Software for a specified period.
n. “Software” means collectively, the Program and the Documentation, and any part thereof.
i. You install the Program only on a computer system that You own or only on a computer system not owned by You if You will be the only party with access to the installed Program; and
ii. You execute the Program during the term of Your license or subscription (i) for its intended purpose solely in connection with the management of the business that You and Your Affiliates conduct, and (ii) solely to the extent of any and all applicable limitations (whether as to specific modules or other parts of the Program, or number of production or backup server computers) set forth in this Agreement; and
iii. You may make only a reasonable number of backup copies of the Program solely for the purpose of reinstalling the Program, if reinstallation becomes necessary; and
iv. You may make one copy of the Program for Use in a testing environment solely for testing purposes; and,
v. You may make and install one copy of the Program at a disaster recovery site for Your Use only for so long as a disaster or other emergency prevents You from Using the Program at Your original installation site.
vi. “You” or “Your” means or refers to the company or person that OpusXenta has registered as the licensee for the Software.
3. LIMITS OF LICENSE. The license contained in this Agreement does not include the right to perform, and You shall not perform, any of the following:
a. Except as expressly set forth in Section 2.o above, making any copy of the Software, except as an essential step in Your licensed Use thereof.
b. Distributing any copy of the Software (whether by renting, leasing, lending, sublicensing, time-sharing, or otherwise), except that, if OpusXenta consents in writing, which consent will not be unreasonably denied, You may transfer the Software but only to a purchasing party after the close of a sale of either Your entire business, or all, or substantially all, of the assets of Your business, provided that the purchasing party reads and accepts (in writing to OpusXenta) the terms and conditions of this Agreement, the purchasing party agrees to other reasonable transfer requirements, and You do not retain a copy of the Software.
c. Altering, modifying, translating, decompiling, disassembling, or reverse-engineering the Software or creating any derivative work based upon the Software.
d. Removing or obscuring any copyright or trademark notices from the Software.
e. Using the Software in excess of (i) the limitations set forth in this Agreement, and (ii) the number and types of users, seats, records or licenses You purchase or rightfully acquire. Use of the Software in excess of the number and type of licenses You purchased constitutes a material breach of this Agreement and (1) You agree to pay to OpusXenta the additional license or subscription fees due for the unpaid use calculated in accordance with the applicable OpusXenta retail price list in effect at the time payment is made, and (2) failure to make the foregoing payment within 30 days of OpusXenta’s invoice date is also a material breach of this Agreement and results in the automatic termination of this Agreement without notice.
4. ADDITIONAL RESTRICTIONS.
a. Any report-writing software contained within the Program may be subject to a restriction such that its use may be limited to accessing only the data that is created by, or used by, the Program;
b. You may not Use, export, re-export or otherwise transfer the Software in violation of any domestic or foreign laws or regulations in effect from time to time in the jurisdiction in which You are a resident or in which the Software is Used. You represent and warrant that You are not located in, under the control of, or a national or resident of, any restricted country or of any entity or person designated as restricted.
5. U.S. GOVERNMENT RESTRICTED RIGHTS. To the extent applicable, the Software is provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the U.S. Government (including its agencies and instrumentalities) is subject to restrictions set forth in 48 CFR 52.227-19 or DFARS 252.227-7014, as applicable. The manufacturer is OpusXenta. The OpusXenta address in Australia is Level 53 MLC Centre 20 Martin Place Sydney NSW 2000.
a. Software. OpusXenta warrants that, during the one hundred and eighty (180)-day period (the “Software Warranty Period”) that commences on the date that OpusXenta Enabled Use of the Software (whether for an initial license or for Maintenance Software), the Program, when properly Used, shall perform substantially in accordance with the Documentation. OpusXenta does not warrant or represent that Your Use of the Software will be uninterrupted or error-free. If You report to OpusXenta in writing within the Software Warranty Period any non-conformity between the Documentation and the Program (a “Warranty Claim”), and if OpusXenta is able to replicate and verify that such non-conformity exists, OpusXenta shall make commercially reasonable efforts to correct such non-conformity and, if successful, shall supply You with such correction at no additional cost to You. If such efforts are unsuccessful and the non-conformity is material, Your sole remedy for a breach of the warranty described in this section 6.a, shall be as follows:
i. If You acquire a Software License, then (1) except for Maintenance Software, You may terminate this Agreement, discontinue Use of and return all copies You have of the Software, and OpusXenta will ensure that You receive a refund of the license fee You paid and credit for any license fee You owe for the Software; and (2) for Maintenance Software, You may terminate Your Service Plan, discontinue Use of and return all copies You have of the Maintenance Software to OpusXenta, and OpusXenta will ensure that You receive a refund of or credit for the fee You paid for the purchase of the terminated Service Plan.
ii. If You acquire an Software Subscription License, You may terminate this Agreement, discontinue Use of and return all copies You have of the Software to OpusXenta, and OpusXenta will ensure that You receive a refund of the Software Subscription License fees You paid in the six (6) months preceding the Warranty Claim.
b. Customer Support. If You are entitled to receive Customer Support as part of a Service Plan, OpusXenta warrants that while Your Service Plan is in effect and if You have paid all required Service Plan fees, OpusXenta will use qualified personnel to provide You Customer Support in a professional manner consistent with industry standards. Your sole remedy under this subsection 6.b is limited to OpusXenta’s re-performance of the Customer Support services giving rise to Your claim.
c. With respect to any media by which You may have received Your installation copy of the Program, OpusXenta warrants that the media is free of defects in materials and workmanship under normal use for the Software Warranty Period. Your sole remedy under this subsection 6.c is limited to replacement of defective media.
e. OTHER THAN THE EXPRESS, LIMITED WARRANTIES STATED IN THIS SECTION 6, OPUSXENTA AND ITS SUPPLIERS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, AND GUARANTEES, OF ANY KIND OR NATURE WHATSOEVER, WHETHER EXPRESS, IMPLIED, AND STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES, CONDITIONS, OR GUARANTEES (I) OF MERCHANTABILITY, (II) OF FITNESS FOR A PARTICULAR PURPOSE, (III) OF NON-INFRINGEMENT OF PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY, AND (IV) ARISING FROM CUSTOM OR TRADE UOPUSXENTA OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE. YOU UNDERSTAND AND AGREE THAT: (1) THE UTILITY OF A BUSINESS MANAGEMENT COMPUTER PROGRAM DECREASES AS TECHNOLOGY EVOLVES AND THE BUSINESS ENVIRONMENT CHANGES, (2) YOU ARE FREE TO DECIDE, AND ARE RESPONSIBLE FOR DECIDING, WHEN TO UPGRADE YOUR SOFTWARE, AND (3) OPUSXENTA DISCLAIMS ANY RESPONSIBILITY TO DELIVER LATER-RELEASED SOFTWARE OR OTHERWISE RENDER ANY CUSTOMER SUPPORT SERVICES UNLESS INCLUDED IN A SERVICE PLAN THAT YOU HAVE PAID FOR IN FULL.
f. Other Limitations. OpusXenta will have no responsibility under these limited warranties for any Software or media that has been modified, lost, stolen, or damaged by accident, abuse, or misapplication. No employee, agent, or representative of OpusXenta, nor any reseller (including Your Reseller if applicable) or any other third party, is authorized to make any warranty with respect to the Software, except those expressly stated in this Agreement, and You may not rely on any such unauthorized warranty. You acknowledge and agree that You have chosen Your Reseller, and that such Reseller is an independent party and not an agent of OpusXenta.
7. EXCLUSIONS OF AND LIMITATION OF LIABILITY.
a. You acknowledge that software is inherently complex and may not be free from errors and that You have been advised to verify the work produced by the Program. Neither OpusXenta nor its suppliers shall be liable for any special, indirect, incidental, consequential, or punitive damages resulting from any defect in the Software or media, even if OpusXenta has been advised of the possibility of such damages. This means OpusXenta is not responsible or liable for damages or costs incurred as a result of loss of time, loss of data, loss of anticipated profits, lost opportunity cost, or loss of use of the Software, nor for damages or costs incurred in connection with obtaining substitute software, receiving support services under Your Service Plan, claims made against You by others, or similar costs. IN NO EVENT SHALL OPUSXENTA’S LIABILITY TO YOU ARISING OUT OF OR IN CONNECTION WITH THE SOFTWARE, YOUR SERVICE PLAN, OR THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED (i) THE LICENSE FEE ACTUALLY PAID BY YOU TO PURCHASE AN SOFTWARE LICENSE, (ii) THE ON-PREMISE SUBSCRIPTION FEES ACTUALLY PAID BY YOU IN THE TWELVE (12) MONTHS PRECEDING YOUR CLAIM, OR (iii) THE FEES ACTUALLY PAID BY YOU TO PURCHASE OR RENEW THE ANNUAL SERVICE PLAN IN EFFECT WHEN THE CLAIM AROSE. You acknowledge and agree that this Agreement allocates risk between You and OpusXenta as authorized by applicable law and that the pricing of OpusXenta products reflects this allocation of risk and the exclusions and limitations of liability contained in this Agreement. If any remedy hereunder is determined to have failed of its essential purpose, all limitations of liability and exclusion of damages set forth in this Agreement shall remain in full force and effect.
b. You acknowledge that unless You and OpusXenta agree in writing for OpusXenta to provide software implementation services to implement the Program at Your place of business, You are responsible for engaging a qualified party to provide implementation services for You on terms You negotiate. You also acknowledge that You are responsible for independently investigating the skills and qualifications of such party to ensure that they provide You with the level of skill and service Your business requires. You agree that OpusXenta shall have no liability whatsoever for any failure associated with such implementation services, even if the party You engage is an authorized or certified Reseller, consultant, or installer of OpusXenta products.
8. JURISDICTIONAL RIGHTS. This Agreement gives You specific legal rights, and You may also have other rights, which vary from jurisdiction to jurisdiction. Some jurisdictions do not allow the exclusion or limitation of implied warranties or of liability for incidental or consequential damages, so some or all of those sections of this Agreement may not apply to You.
9. TERM AND TERMINATION. This Agreement is effective from the date You accept it, as set forth in Section 1.a.ii, and continues until terminated in accordance with this Section 9.
a. If You acquire a Software License for which payment is made up front, You may terminate this Agreement at any time, at which point Your license hereunder will terminate.
b. If You acquire a Software Subscription License:
i. The “Initial Term” will run for one (1) year unless You are offered and select a longer subscription term when You acquire Your initial Software Subscription License; in such event, the longer subscription term will be Your Initial Term. Your Initial Term will automatically continue to renew thereafter for the same subscription term (Your “Renewal Term).” Payment is due for the full length of Your Initial Term and each Renewal Term and is non-cancellable and non-refundable (except as described in Subsections 6.a.i, 6.a.ii, 11.c, and in subsection 9.b.ii immediately below), even if You cancel or choose not to renew Your Software Subscription License.
ii. You may choose not to renew Your Software Subscription License or to reduce the number of Your Software Subscription License users by providing Your non-renewal or reduction request to OpusXenta at [email protected]. Your request must include Your OpusXenta customer number, Your company name, a company contact name, a company phone number or email, and the name of the Software. OpusXenta must receive Your request at least one month prior to the end of Your Initial Term or current Renewal Term in order for the request to take effect at the end of Your Initial Term or current Renewal Term (the “Termination Date”). If Your non-renewal or reduction request is received less than one (1) month before but by the end of the Initial Term or the Renewal Term, OpusXenta may charge and You agree to pay a processing fee equal to the pro-rated cost for one month of Your subscription term to process Your request. Requests received after the Termination Date will be applied to the following Renewal Term.
iii. You shall be responsible (i) for all Software Subscription License fees and processing fees that fall due before or after the Termination Date, and (ii) for retrieving Your data from the Software within 30 days after the Termination Date.
c. If You acquire an Evaluation License, the Evaluation License will expire at the end of the evaluation period provided by OpusXenta or Your Reseller, or if no evaluation period end date is provided, Your Evaluation License shall expire thirty (30) days after OpusXenta or Your Reseller makes the Software available to You for evaluation.
d. Notwithstanding the foregoing, this Agreement and the license granted to You will terminate automatically and without notice if You fail to comply with any term or condition of this Agreement, including but not limited to the payment of all license fees when due. THE SOFTWARE MAY CONTAIN TECHNOLOGY THAT ALLOWS OPUSXENTA TO TERMINATE YOUR USE OF THE PROGRAM OR CONVERT YOUR ACCESS TO THE PROGRAM TO READ-ONLY IN THE EVENT YOU MATERIALLY BREACH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO, YOUR FAILURE TO PAY LICENSE FEES WHEN DUE. IF OPUSXENTA CONVERTS YOUR ACCESS TO READ-ONLY, YOU WILL CONTINUE TO HAVE ACCESS TO DATA YOU ENTERED BEFORE THE CONVERSION BUT WILL NOT BE ABLE TO ENTER NEW DATA.
e. Upon termination or expiration of Your Evaluation License, and (i) if You purchase a Software License or a Software Subscription License, You acknowledge and agree that this Agreement (excluding Sections 1.e and 6.d) shall govern Your continued Use of the Software, or (ii) if You do not purchase an Software License or an Software Subscription License, You shall comply with OpusXenta or Your Reseller’s instructions for returning the Software. If no instructions are provided, You shall follow the return and destroy instructions set out in Section 9.f, below.
f. Within thirty-five (35) days after the termination or expiration of Your Software License, Your Software Subscription License, or this Agreement, You shall return the Software to OpusXenta and destroy all other Software copies in Your possession or control.
g. Any provision in this Agreement which when reasonably read as intended to survive the termination of this Agreement shall survive, including without limitation, the disclaimer of warranties and limitations of liability.
a. Any dispute, controversy or claim arising out of, relating to or in connection with this contract, including any question regarding its existence, validity or termination, shall be resolved in accordance with this clause 10.
b. Unless a Party has complied with clauses 10c. and 10d. that Party may not commence court proceedings or arbitration relating to any dispute arising from this Agreement. Notwithstanding the foregoing, where a Party seeks urgent interlocutory relief that Party need not comply with this clause before seeking such relief. Where a Party fails to comply with clauses 10c. and 10d., any other Party in dispute with the Party failing to comply need not itself comply with this clause before commencing court proceedings relating to that dispute.
c. Any Party raising a dispute under this Agreement either with the other Party must give written notice to the other Party providing full details of the dispute. The notice must designate a person (with absolute authority to settle the dispute) to represent that Party. The Party receiving such notice must within 5 Business Days give notice in writing to the other Party designating a person (with absolute authority to settle the dispute) to represent that Party.
d. The designated persons must, within five (5) Business Days of the last designation required by clause 10c., commence good faith negotiations to seek to resolve the dispute. If the Dispute has not been resolved at the expiration of that period or if a Party fails to designate a representative within the period stipulated in clause10c. and 10d., the party raising the dispute may pursue any remedy it deems fit, including institution of court proceedings.
a. ANY CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, MUST BE BROUGHT NO MORE THAN ONE (1) YEAR AFTER IT AROSE, OTHERWISE THE CLAIM OR CAUSE OF ACTION SHALL BE BARRED, EXCEPT THAT THE FOREGOING LIMITATION AND THE DISPUTE RESOLUTION PROVISIONS SHALL NOT APPLY TO THE ENFORCEMENT BY OPUSXENTA OF YOUR PAYMENT OBLIGATIONS AND ANY OPUSXENTA INTELLECTUAL PROPERTY RIGHTS. THIS PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT.
a. If You receive notice of any claim that Your use of any part of the Software infringes any third party’s intellectual property right in a patent, copyright, or trade secret (an “Indemnity Claim”), OpusXenta shall defend and shall indemnify and hold You harmless by paying any resulting costs and damages finally awarded by a court with respect to any such Indemnity Claim provided that You:
i. Notify OpusXenta in writing promptly upon becoming aware of the Indemnity Claim,
ii. At OpusXenta’s request and expense, give OpusXenta such information and assistance as is reasonable under the circumstances, and
iii. Give OpusXenta the right to settle the Indemnity Claim in OpusXenta’s sole discretion and at OpusXenta’s expense.
b. This indemnification does not extend to any Indemnity Claim arising from the combination of the Software with other elements not under OpusXenta’s sole control, or arising from any part of the Software that You or a third-party modify, or that incorporates specifications, designs or formulas that You provide. If You are prevented from Using the Software because of an actual or claimed infringement, then at OpusXenta’s option, OpusXenta shall promptly either obtain for You the right to continue Using the affected part of the Software, replace or modify the affected part of the Software so that it becomes non-infringing, or if none of the foregoing alternatives are possible after OpusXenta exercises commercially reasonable efforts, You may terminate this Agreement and Your Service Plan, and OpusXenta shall ensure that:
i. If You acquire an Software License, You receive a refund or credit for (i) the Service Plan fee You incurred to purchase or renew Your most recent Service Plan, and (ii) a pro rata portion of the Software License fees You incurred for the purchase of Your initial Software License and all upgrades, which pro rata portion will be determined on the basis of the remaining period of a useful life of (5) five years, where the five-year useful life begins on the date You purchase Your initial license.
ii. If You acquired an Software Subscription License, You receive a refund of or credit for any prepaid but unused portion of the Software Subscription License fees paid by You for the Software.
12. AUDIT RIGHTS. With or without prior notice, OpusXenta may audit Your Use of the Software to ensure that You comply with the terms and conditions of this Agreement. If an audit reveals that You have underpaid fees or owe fees to OpusXenta, OpusXenta will invoice You for the underpayment or amount due based on the OpusXenta price list in effect at the time the audit is completed.
13. SERVICE PLAN. Service Plan information for OpusXenta products is provided through the OpusXenta OpusCARE customer care program, a copy of which will be provide to You on request via email at [email protected].
14. FEE INCREASES. OpusXenta may increase its license and other fees at any time so fees due for new or additional Software license or subscription purchases may be more than a previous purchase. OpusXenta will notify You of a price increase at least 60 days before the increase takes effect.
a. If You purchased a Software Subscription License, OpusXenta may not increase Software Subscription License fees more than once in any 12 month period following Your initial purchase by more than:
i. Five percent (5%), or
ii. The percentage increase in the unadjusted Consumer Price Index as published by the Australian Bureau of Statistics for the 12 months preceding the date a price increase is announced for Software Subscription Licensees generally, whichever is greater.
b. You are responsible for providing OpusXenta with Your most current contact and billing information. You may provide updates to Your contact information to OpusXenta at [email protected] and updates to Your billing information to OpusXenta at [email protected]. You agree that, so long as Your Software Subscription License is active, OpusXenta may, on a monthly basis, automatically bill the same credit card or bank account You provide to OpusXenta.
15. MONITORING/PERSONAL INFORMATION. The Program may contain technologies that monitor, record and report to OpusXenta information regarding the installation and use of the Program, including but not limited to information concerning the computer or workstation, or personal digital assistant, “smart phone” or other similar electronic device with which the Program operates; the frequency, type and manner of use to which the Program is put; the updating of Programs and conversion of data, and the data inputted to or through the Program by You or on Your behalf, such as company data, payroll data, check data, and other transaction-identifying information (collectively, the "Transaction Data"). OpusXenta collects and uses the Transaction Data to support, maintain, and improve the Program, and to enforce OpusXenta's rights under this Agreement. To the extent any of the Transaction Data is personal information within the meaning of applicable law, You hereby: (a) consent to OpusXenta's collection, use and disclosure of such Transaction Data for these purposes; and (b) represent and warrant that You have obtained the consent of any individual to whom such Transaction Data relates to OpusXenta's collection, use and disclosure of such Transaction Data for these purposes, or that the consent of any such individuals is not required to be obtained under applicable law.
16. AUTOMATIC UPDATES. The Software may contain automatic update technology, a feature used to provide Maintenance Software such as bug fixes, patches, enhanced functions, missing plug-ins, and new versions. This feature cannot be disabled. This feature will: (i) connect to OpusXenta or service provider computer systems over the Internet, (ii) use Internet protocols to recover standard computer information in order to determine whether Maintenance Software is required, and (iii) automatically download and install, or prompt You to download and/or install, current Maintenance Software. By installing the Software initially, You consent to the transmission of standard computer information and the automatic downloading and installation of Maintenance Software.
17. ENTIRE AGREEMENT AND SEVERABILITY. This Agreement represents the complete and exclusive understanding between You and OpusXenta regarding the Program and Your Service Plan and supersedes any prior purchase order, confirmation, advertising, representation, or other communication. This Agreement may not be modified except by a written agreement signed by You and an authorized OpusXenta representative. If any provision of this Agreement is found to be void, invalid, or unenforceable, it shall be severed from and shall not affect the remainder of this Agreement, which shall remain valid and enforceable. Any such severed provision shall be replaced with a similar provision which conforms to applicable law and embodies as closely as possible the original intent of the parties.
18. GOVERNING LAW: This Agreement shall be governed by and construed according to the laws in force in New South Wales, Australia and the parties agree to submit to the non exclusive jurisdiction of the Courts of New South Wales, Australia.
You hereby give OpusXenta permission to send You information regarding OpusXenta products and services by various delivery methods, including by post, facsimile and email.