End User License & Support Agreement
IMPORTANT - PLEASE READ ALL OF THE FOLLOWING TERMS AND CONDITIONS
1. GRANT OF LICENSE
Orchid (“Orchid” and other capitalized terms are defined below) grants You a limited, non-exclusive, non-transferable (except as set forth in Section 3b below), non-sublicensable 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, such as Your Reseller has:
(1) Placed an order with Orchid for either an initial license or an upgrade (such as for more users, additional modules, etc.), or a Service Plan, and Orchid has accepted such order and Enabled Use of the Software; and
(2) 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 MORE 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 THE SOFTWARE.
c. If You acquire an On-Premise Subscription License, You may Use the Software only for the subscription period for which Orchid has received Your On-Premise Subscription License fee.
d. If You purchase an On-Premise License, You may Use the Software only if You pay the required On-Premise License fee or fees when due.
e. If You access the Software under an Evaluation License prior to Your purchase of an On-Premise Subscription License or an On-Premise License, You acknowledge and agree that (i) You shall Use the Software only for evaluation purposes before purchasing an On-Premise Subscription License or an On-Premise 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, Orchid is under no obligation to return to You data You have entered into, that is processed by or is stored in the Software and it 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.
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 Orchid End User License and Support Agreement, and the Supplemental License Terms, 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 assistance with the Software You may receive by phone, email, chat, access to on-line information, or by similar means from Your Reseller. Orchid does not provide Customer Support directly to You but will support your Reseller in supporting you on the Software if (i) you have a current Service Plan or current On-Premise Subscription License and (ii) you are running a supported version of the Software.
d. “Documentation” means the Program specifications that are set forth in the Program help files and any release-related notes, guides or manuals Orchid publishes specific to the current version of the Program.
e. “Enabled Use” means that Orchid 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 Orchid delivers because You have purchased a Service Plan or an On-Premise Subscription License.
h. “On-Premise License” means a license to Use the Software according to this Agreement until this Agreement terminates as described herein.
i. “On-Premise 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.
j. “Program” means the computer program, a part of which includes the install routine that when executed causes this Agreement to be displayed.
k. “Reseller” means the independent third party reseller from whom You acquire the Software.
l. “Orchid” means the Orchid company that publishes the Software.
m. “Service Plan” means a plan You purchase separately or acquire as part of the purchase of an On-Premise Subscription License providing You Maintenance Software for a specified period.
n. “Software” means collectively, the Program and the Documentation, and any part thereof.
o. ”Supplemental License Terms” means any additional terms and restrictions posted by Orchid at http://www.orchid.systems/eula-serviceplan that are specific to the Program You license under this Agreement.
p. “Use” means to install and execute the Program, provided that:
(1) 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
(2) 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
(3) 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
(4) You may make one copy of the Program for Use in a testing environment solely for testing purposes; and,
(5) 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.
q. “You” or “Your” means or refers to the company or person that Orchid 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 2p 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, timesharing, or otherwise), except that, if Orchid 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 Orchid) 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. Using the Software for personal, family, household, or other non-business purposes.
d. Altering, modifying, translating, decompiling, disassembling, or reverse-engineering the Software or creating any derivative work based upon the Software.
e. Removing or obscuring any copyright or trademark notices from the Software.
f. Using the Software in excess of (i) the limitations set forth in this Agreement, and (ii) the number and types of users, seats 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 Orchid the additional license or subscription fees due for the unpaid use calculated in accordance with the applicable Orchid retail price list in effect at the time payment is made, and (2) failure to make the foregoing payment within 30 days of Orchid'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
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 Orchid. The Orchid address in Australia is 2 / 273 Alfred Street, North Sydney NSW 2060.
6. LIMITED WARRANTIES AND DISCLAIMERS
a. Software. Orchid warrants that, during the one hundred and eighty (180)-day period (the “Software Warranty Period”) that commences on the date that Orchid 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. Orchid does not warrant or represent that Your Use of the Software will be uninterrupted or error-free. If You report to Orchid in writing within the Software Warranty Period any nonconformity between the Documentation and the Program (a “Warranty Claim”), and if Orchid is able to replicate and verify that such nonconformity exists, Orchid shall make commercially reasonable efforts to correct such nonconformity and, if successful, shall supply You with such correction at no additional cost to You. If such efforts are unsuccessful and the nonconformity is material, Your sole remedy for a breach of the warranty described in this section 6a, shall be as follows:
(1) If You acquire an On-Premise 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 Orchid 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 Orchid, and Orchid will ensure that You receive a refund of or credit for the fee You paid for the purchase of the terminated Service Plan.
(2) If You acquire an On-Premise Subscription License, You may terminate this Agreement, discontinue Use of and return all copies You have of the Software to Orchid, and Orchid will ensure that You receive a refund of the On-Premise Subscription License fees You paid in the six (6) months preceding the Warranty Claim.
b. Reseller Support. If your Reseller is entitled to receive Reseller Support as part of a Service Plan, Orchid warrants that while Your Service Plan is in effect and if You have paid all required Service Plan fees, Orchid will use qualified personnel to provide Your Reseller Support for your site in a professional manner consistent with industry standards. Your sole remedy under this subsection 6b is limited to Orchid's reperformance of the Reseller Support services giving rise to Your claim. Orchid will not provide Support directly to You, but will support Your Reseller as part of your Service Plan if (i) the Service Plan is in effect and (ii) Your Reseller is an authorized or certified Reseller, consultant, or installer of Orchid products
c. With respect to any media by which You may have received Your installation copy of the Program, Orchid 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 6c is limited to replacement of defective media.
d. Evaluation License. SOFTWARE PROVIDED UNDER AN EVALUATION LICENSE IS PROVIDED “AS IS” WITH NO IMPLIED OR EXPRESS WARRANTIES. Subsections 6a, 6b, and 6c do not apply to Evaluation Licenses.
e. OTHER THAN THE EXPRESS, LIMITED WARRANTIES STATED IN THIS SECTION 6, ORCHID 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 USAGE 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) ORCHID DISCLAIMS ANY RESPONSIBILITY TO DELIVER LATER-RELEASED SOFTWARE OR OTHERWISE RENDER ANY SUPPORT SERVICES UNLESS INCLUDED IN A SERVICE PLAN THAT YOU HAVE PAID FOR IN FULL.
f. Other Limitations. Orchid 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 Orchid, nor any reseller (including Your Reseller) 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 Orchid.
7. EXCLUSIONS OF AND LIMITATION OF LIABILITY
a. You acknowledge Your understanding 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 Orchid 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 Orchid has been advised of the possibility of such damages. This means Orchid 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 ORCHID'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 ON-PREMISE 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 Orchid as authorized by applicable law and that the pricing of Orchid 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 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 Orchid 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 Orchid 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 1a(2), and continues until terminated in accordance with this Section.
a. If You acquire an On-Premise License, You may terminate this Agreement at any time, at which point Your license hereunder will terminate.
b. If You acquire an On-Premise Subscription License:
(1) The “Initial Term” will run for one (1) year unless You are offered and select a longer subscription term when You acquire Your initial On-Premise 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 6a(1), 6a(2), 11b, and in subsection (2) immediately below), even if You cancel or choose not to renew Your On-Premise Subscription License.
(2) You may choose not to renew Your On-Premise Subscription License or to reduce the number of Your On-Premise Subscription License users by providing Your non-renewal or reduction request to Orchid at email@example.com. Your request must include Your Reseller’s name, Your
company name, a company contact name, a company phone number or email, and the name of the Software. Orchid 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, Orchid 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.
(3) You shall be responsible (i) for all On-Premise Subscription License fees and processing fees that fall due before or after the Termination Date, and (ii) for retrieving Your data from the Software before the Termination Date.
c. If You acquire an Evaluation License, the Evaluation License will expire at the end of the evaluation period provided by Orchid or Your Reseller, or if no evaluation period end date is provided, Your Evaluation License shall expire thirty (30) days after Orchid 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 ORCHID 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 ORCHID 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 an On-Premise License or an On-Premise Subscription License, You acknowledge and agree that this Agreement (excluding Sections 1e and 6d) shall govern Your continued Use of the Software, or (ii) if You do not
purchase an On-Premise License or an On-Premise Subscription License, You shall comply with Orchid 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 9f, below.
f. Within thirty-five (35) days after the termination or expiration of Your On-Premise License, Your On-Premise Subscription License, or this Agreement, You shall return the Software to Orchid 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.
10. DISPUTE RESOLUTION, WAIVER OF COLLECTIVE OR CLASS ACTION, CHOICE OF LAW, STATUTE OF LIMITATIONS, AND LANGUAGE
Any cause of action or claim arising out of or relating to this Agreement or the breach thereof, including without limitation, the validity, enforceability, or scope of this Agreement, shall be settled by binding arbitration pursuant to this Section 10 and the applicable rules of the Chair of Resolution Institute, Level 2, 13-15 Bridge Street, Sydney NSW 2000, Australia in effect at the time the claim is filed. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. In addition, You agree that any cause of action or claim will be arbitrated individually and that You will not consolidate or seek class treatment for any claims, unless previously agreed to in writing by You and Orchid. This Agreement shall be governed by the laws of the State of New South Wales in Australia.
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 ARBITRATION PROVISION SHALL NOT APPLY TO THE ENFORCEMENT BY ORCHID OF YOUR PAYMENT OBLIGATIONS AND ANY ORCHID 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”), Orchid 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:
(1) Notify Orchid in writing promptly upon becoming aware of the Indemnity Claim,
(2) At Orchid's request and expense, give Orchid such information and assistance as is reasonable under the circumstances, and
(3) Give Orchid the right to settle the Indemnity Claim in Orchid's sole discretion and at Orchid's expense.
b. This indemnification does not extend to any Indemnity Claim arising from the combination of the Software with other elements not under Orchid'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 Orchid's option, Orchid 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 Orchid exercises commercially reasonable efforts, You may terminate this Agreement and Your Service Plan, and Orchid shall ensure that:
(1) If You acquire an On-Premise 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 On-Premise License fees You incurred for the purchase of Your initial On-Premise 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.
(2) If You acquired an On-Premise Subscription License, You receive a refund of or credit for any prepaid but unused portion of the On-Premise Subscription License fees paid by You for the Software.
c. THIS SECTION 11 SETS OUT ORCHID'S ENTIRE FINANCIAL LIABILITY FOR ANY INDEMNITY CLAIM.
12. AUDIT RIGHTS
With or without prior notice, Orchid 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 Orchid, Orchid will invoice You for the underpayment or amount due based on the
Orchid price list in effect at the time the audit is completed.
13. SERVICE PLAN
Service Plan information for Orchid products is posted by Orchid from links appearing at http://www.orchid.systems/eula-serviceplan (or a successor website for the Service Plan information) and related web pages that describe the Service Plan features for the Program You license or the subscription You purchase.
14. FEE INCREASES
Orchid may increase its license and other fees at any time without notice so fees due for new or additional Software license or subscription purchases may be more than a previous purchase.
a. If You purchased an On-Premise Subscription License, Orchid may not increase On-Premise Subscription License fees more than once in any 12 month period following Your initial purchase. Orchid will notify You of a price increase at least 60 days before the increase takes effect.
b. You are responsible for providing Orchid or the party responsible for billing You with Your most current contact and billing information. You may provide updates to Your contact and billing information to Orchid at firstname.lastname@example.org. You agree that, so long as Your On-Premise Subscription License is active, Orchid or the party responsible for billing You for your subscription may automatically bill the same credit card or bank account You provide.
15. MONITORING/PERSONAL INFORMATION
The Program may contain technologies that monitor, record and report to Orchid 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"). Orchid collects and uses the Transaction Data to support, maintain, and improve the Program, and to enforce Orchid'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 Orchid'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 Orchid'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 Orchid 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 Orchid 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 Orchid 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.
You hereby give Orchid permission to send You information regarding Orchid products and services by various delivery methods, including by facsimile and email.