SECTION 1.0. DEFINITIONS.
The terms listed below shall have the following meanings:

1.1. Confidential Information: Proprietary information relating to a party’s business or product offering(s) which such party has either marked confidential or otherwise informed the other party of its confidential nature or by which its nature is sensitive or proprietary and which has not publicly released and which is not otherwise publicly available.
1.2. Documentation: Any documentation supplied by AURAPLAYER to assist Users(s) in the use of the AURAPLAYER Software Product.
1.3. Effective Date: The date on which the AURAPLAYER Software Product(s) is made available to CUSTOMER.
1.4. Enhancement: A modification, improvement, upgrade (including bug fixes) of AURAPLAYER Software Product(s), which has been commercially released by AURAPLAYER.
1.5. License: The non-exclusive, non-transferable, right granted by AURAPLAYER to CUSTOMER permitting the use of AURAPLAYER Software Product(s) and Documentation, all subject to the terms and conditions of this Agreement. This can be either a perpetual license or annual subscription license as shall be set forth in an amendment to this Agreement (the “Amendment”).
1.6. License Fee: A license fee due to AURAPLAYER by CUSTOMER for the License of AURAPLAYER Software Product(s). Per License type, either perpetual or annual subscription as set forth in the Amendment.

1.7. Proprietary Right: A patent, copyright, trademark, trade secret, or other proprietary or intellectual property right.
1.8. S&M / Subscription Fee (“Annual Fees”): An annual fee payable by CUSTOMER to AURAPLAYER for the support and maintenance or annual rental of AURAPLAYER Software Product(s).
1.9. S&M / Subscription Period (“License Period”): The twelve (12) month period commencing on the Effective Date and each subsequent twelve (12) consecutive month period thereafter during the term of this Agreement.1.10. Software Product: The executable code version of the AURAPLAYER computer software product being furnished and licensed to CUSTOMER by AURAPLAYER pursuant to this Agreement.
1.11. User: An authorized employee of CUSTOMER or a consultant or agent working on behalf of CUSTOMER for whom the CUSTOMER has paid the required License fee to use AURAPLAYER Software Product(s) as set forth in this Agreement.

SECTION 2.0. LICENSE TERMS.

2.1. Grant of License.
2.1.1. Subject to the terms and conditions herein, AURAPLAYER hereby grants to CUSTOMER the License to use AURAPLAYER Software Product(s) and Documentation, solely for CUSTOMER’s business.
2.1.2 Detailed terms regarding the License, including but not limited to the License Fee and the number of authorizers CPUs and/or servers as set forth in the Amendment.
2.1.3 The License for AURAPLAYER Software Product(s) shall commence on the Effective Date and shall continue in effect thereafter for the period specified in the Amendment unless terminated in accordance with the terms and conditions of this Agreement.

2.2. Conditions of Use.
2.2.1. CUSTOMER shall be permitted to use AURAPLAYER Software Product(s) only upon such servers and CPUs for which CUSTOMER has paid the applicable License Fee. CUSTOMER may not copy AURAPLAYER Software Product(s) except for (a) such copies or portions thereof as may be generated as part of the normal operation of the AURAPLAYER Software Product(s) and (b) archival copies of the AURAPLAYER Software Product(s) as may be reasonably necessary to support CUSTOMER’s use thereof under this Agreement and (c) for disaster recovery purposes. CUSTOMER may make only those copies of the Documentation as CUSTOMER reasonably determines to be necessary to support CUSTOMER’s User(s). CUSTOMER agrees to incorporate all Proprietary Rights notices of AURAPLAYER in each such copy of AURAPLAYER Software Product(s) and Documentation, and all such copies, shall be the property of AURAPLAYER and subject to the terms and conditions of this Agreement.

2.2.2. If and when so requested, CUSTOMER shall provide AURAPLAYER with a list of all copies and locations of the AURAPLAYER Software Product(s) and Documentation and AURAPLAYER may from time to time perform an audit of the CUSTOMER’s use of the AURAPLAYER Software Product(s) and Documentation and CUSTOMER’s compliance with the provisions of this Agreement and the Amendment. Any such audit shall be made during CUSTOMER’s normal business hours. AURAPLAYER shall notify CUSTOMER, in writing, ten (10) business days prior to such audit. CUSTOMER agrees to cooperate with AURAPLAYER in any such audit.
2.2.3. AURAPLAYER Software Product(s) shall be used exclusively with Oracle Forms based applications running on servers and CPUs that are located on CUSTOMER’s premises and are owned and operated by CUSTOMER. Without derogating from the generality of the above, the following shall be prohibited: the use of AURAPLAYER Software Product(s) on a “service bureau” basis and/or providing services to or on behalf of third parties.
2.2.4. Each copy of AURAPLAYER Software Product(s) licensed hereunder may be installed only on the CUSTOMER defined server or CPU, as appropriate. Should CUSTOMER wish to license additional copy or copies of AURAPLAYER Software Product(s), CUSTOMER shall be required to pay additional License fees for such copy or copies.. In the event CUSTOMER wishes to transfer or to install a copy of AURAPLAYER Software Product(s) to another server or CPU, CUSTOMER will first be required to uninstall the copy from the first server or CPU. The transfer of the AURAPLAYER Software Product(s) to a new server as stated above shall be executable only in coordination with AURAPLAYER staff who will provide the requisite files or software to facilitate such transfer.
2.2.5. CUSTOMER shall not modify, disassemble or reverse compile or reverse engineer the AURAPLAYER Software Product(s). CUSTOMER shall not translate or make derivative works of the AURAPLAYER Software Product(s) or Documentation.

2.3.0 License and Maintenance Fees.
2.3.2. In consideration of the above-mentioned License, CUSTOMER agrees to pay the License Fee to AURAPLAYER.  AURAPLAYER will submit an invoice electronically to the Customer to include license details and terms. Payment terms are Net 30 days from receipt of the invoice.

2.3.3. When applicable, the Annual Fees shall be set forth in the purchase order. The initial License Period shall be due and payable within thirty (30) days of the Effective Date. Annual Fees for subsequent periods shall be due and payable within thirty (30) days of the start of each such License Period. Annual Fees are subject to increase or modification by AURAPLAYER and AURAPLAYER reserves the right to change them in its discretion.. AURAPLAYER shall notify CUSTOMER of any increase in the Annual Fee at least sixty (60) days prior to the end of the then current License Period.

2.3.4. In the event CUSTOMER resumes its annual subscription for Services after having previously refused or discontinued its subscription for such services, CUSTOMER shall be required to pay in addition to the Annual Fee  for the new License Period: (i) the Annual Fee  for the period for which CUSTOMER had refused or discontinued its subscription plus (ii) a 50% surcharge on the Annual Fee for the period CUSTOMER had refused or discontinued its subscription to cover AURAPLAYER’s costs of upgrading CUSTOMER to the most updated version of AURAPLAYER Software Product(s). The foregoing Annual Fees shall be charged at AURAPLAYER’s then current list price.

2.3.5. Unless expressly indicated otherwise, ALL LICENSE FEES AND ANNUAL FEES ARE NON-REFUNDABLE.

 

SECTION 3.0. SUPPORT AND MAINTENANCE TERMS.

 3.1. S&M Services.
3.1.1. Subject to CUSTOMER’s full and timely payment of the Annual Fees and subject to CUSTOMER’s compliance with the S&M Service Conditions (as defined below), AURAPLAYER agrees to provide CUSTOMER with the following support and maintenance services for AURAPLAYER Software Product(s) to ensure that AURAPLAYER Software Product(s) perform in accordance with its Documentation in all material respects: (a) Internet-based support services including remote connection if deemed necessary by AURAPLAYER (b) telephone-based support services available to CUSTOMER during AURAPLAYER’s normal business hours, 8:00 a.m. to 6:00 p.m., EST Time, Sunday through Friday (excluding holidays observed by AURAPLAYER), and (c) written responses to inquiries sent by CUSTOMER via electronic mail to [email protected] with responses to be provided within twenty-four (24) hours of receipt of inquiries (excluding holidays and non-work days). In addition, CUSTOMER shall be entitled to receive all Enhancements as are distributed generally by AURAPLAYER at no additional charge to AURAPLAYER’s other software maintenance customers for AURAPLAYER Software Product(s) .

3.1.2. Each Enhancement of AURAPLAYER Software Product(s) delivered by AURAPLAYER to CUSTOMER under this Agreement shall be considered to be part of the AURAPLAYER Software Product(s) for purposes of this Agreement. Similarly, each update of the Documentation delivered by AURAPLAYER to CUSTOMER shall be considered to be part of such Documentation for purposes of this Agreement. AURAPLAYER and CUSTOMER agree that each party’s rights, restrictions, and obligations under this Agreement with respect to AURAPLAYER Software Product(s) and Documentation shall also extend and apply to all Enhancements and updates thereof.

3.2. Support and Maintenance Conditions.
3.2.1. AURAPLAYER’s obligation to provide support and maintenance services for the AURAPLAYER Software Product(s) shall be subject to the following conditions (“Maintenance Conditions”): (a) CUSTOMER shall have paid the Annual Fees for the current License Period; (b) the Software Product is being used by CUSTOMER in accordance with the terms and conditions of this Agreement; (c) the release of AURAPLAYER Software Product(s) being used by CUSTOMER is the most recent release (or the release just prior to the most recent release) provided by AURAPLAYER under this Agreement; and (d) CUSTOMER shall have provided AURAPLAYER with all information reasonably requested by AURAPLAYER from time to time in connection with AURAPLAYER’s performance of Maintenance Services.
3.2.2. If AURAPLAYER is requested to provide Maintenance Services to CUSTOMER for AURAPLAYER Software Product(s) under circumstances where a Maintenance Condition has not been satisfied, and AURAPLAYER is aware that such Maintenance Condition has not been satisfied, then AURAPLAYER will notify CUSTOMER prior to performing the requested Maintenance Services. If AURAPLAYER provides Maintenance Services to CUSTOMER for AURAPLAYER Software Product(s) where a Maintenance Condition has not been satisfied (after giving CUSTOMER any required notice, as set forth above), or if AURAPLAYER determines that the problem reported by CUSTOMER resulted from problems with CUSTOMER’s computer equipment, operating systems, or other system software, or from problems with any other software or database upon which AURAPLAYER Software Product(s) relies or with which AURAPLAYER Software Product(s) interfaces or is interdependent, then CUSTOMER agrees to pay to AURAPLAYER a separate fee for the Maintenance Services provided by AURAPLAYER based on the services provided and AURAPLAYER’s then-current rates for such services. Such fee shall be payable within thirty (30) days of CUSTOMER’s receipt of AURAPLAYER’s invoice therefore.

3.2.3. Either party may terminate Maintenance Services at the end of the then current License Period by giving written notice to the other party at least sixty (60) days prior to the expiration of CUSTOMER’s then current License Period. Should the customer own a perpetual licenses, termination of Maintenance Services by CUSTOMER does not terminate CUSTOMER’s right to use AURAPLAYER Software Product(s) under this Agreement. Should the customer own an annual subscription license, the failure to pay Annual Fees will result in the termination of services 30 days after  the end of the License Period should Annual Fees not be renewed.

 

SECTION 4.0. CONFIDENTIALITY TERMS.

4.1 Title to the Software, any copies thereof or any modification, improvement, adaptation, enhancement or translation thereof, generated as a result of the performance of this Agreement, and all rights in and to any and all patents, trademarks, copyright and other intellectual property right subsisting therein and related thereto, shall at all times remain exclusively vested with AURAPLAYER. CUSTOMER shall not have any right, title, or interest in AURAPLAYER Software Product(s), or Documentation, nor in any Proprietary Rights related thereto, except for CUSTOMER’s right to use AURAPLAYER Software Product(s) and Documentation in accordance with this Agreement. AURAPLAYER reserves all rights not expressly granted by it to CUSTOMER under this Agreement.
4.2. CUSTOMER agrees not to sell, transfer, publish, disclose, display, copy or otherwise make available to any third party AURAPLAYER Software Product(s) or Documentation.
4.3. CUSTOMER agrees to (a) secure and protect all copies of AURAPLAYER Software Product(s) and Documentation in a manner consistent with CUSTOMER’s obligations under this Agreement, and (b) take appropriate action by instruction or agreement with CUSTOMER’s employees, temporary employees, consultants, or other third parties who are permitted access to AURAPLAYER Software Product(s) (s) or Documentation in order to satisfy CUSTOMER’s obligations hereunder.
4.4 Each party also agrees not to use Confidential Information of the other party except to the extent required to implement, maintain, and support AURAPLAYER Software Product(s) for CUSTOMER’s use under this Agreement. Notwithstanding the foregoing, a party may disclose Confidential Information of the other party to those employees and contractors of the first party who have a need to know such Confidential Information in order to implement, maintain, and support AURAPLAYER Software Product(s) for CUSTOMER’s use under this Agreement; provided, that such disclosure and use is made subject to the same restrictions as are set forth herein.

4.5 Either party may publicly disclose the existence of this Agreement, but neither party shall disclose details of the Agreement, nor quote the other party, without written consent from the other party.

4.6. AURAPLAYER Software Product(s) may contain software developed by third parties, such as Sun Microsystems Inc, Oracle Corporation, among others (hereinafter, “the Licensors”). CUSTOMER acknowledges that the Licensors are third party beneficiaries under this License Agreement.

SECTION 5.0. CUSTOMER’S RESPONSIBILITIES.
5.1. Unless otherwise set forth in an addendum to this Agreement, CUSTOMER is responsible for (a) any interfacing between AURAPLAYER Software Product(s) and all other software and database(s) used by CUSTOMER, and (b) installing, managing, and operating AURAPLAYER Software Product(s) .
5.2. Any United States (whether federal, state, or local) or foreign sales, use, value-added or other taxes (excluding only any tax based on AURAPLAYER’s net income), assessments, or other governmental fees or charges arising from any payments made or to be made by CUSTOMER to AURAPLAYER under this Agreement or any Addendum hereto, or from the implementation, licensing, or use of AURAPLAYER Software Product(s) or Documentation, or from any Maintenance Services or other services provided by AURAPLAYER to CUSTOMER, or otherwise related to or arising out of this Agreement, are the responsibility of and shall be paid by CUSTOMER or, if AURAPLAYER is required to pay the same, shall be reimbursed by CUSTOMER to AURAPLAYER.
5.3. CUSTOMER shall comply with all United States and foreign export and import laws, rules, and regulations related to CUSTOMER’s implementation, license, and/or use of any Software Product(s) or Documentation outside the United States. CUSTOMER shall be responsible for and shall pay (or reimburse AURAPLAYER for) all United States and foreign export and import duties, fees, and other governmental charges, however designated, associated with CUSTOMER’s implementation, license, or use of AURAPLAYER Software Product(s) , or Documentation outside the United States.
5.4. All training, implementation, consulting, and other services provided by AURAPLAYER to CUSTOMER (excepting only Maintenance Services provided under Section 3.0), including reasonable travel expenses, will be billed separately by AURAPLAYER to CUSTOMER at AURAPLAYER’s then-current standard professional service rates.
5.5. All amounts payable by CUSTOMER to AURAPLAYER under this Agreement shall, except to the extent that different payment terms therefore are set forth in this Agreement, be payable in full within thirty (30) days of CUSTOMER’s receipt of an invoice therefore from AURAPLAYER.

 

SECTION 6.0. LIMITED

WARRANTY; LIMITATION OF WARRANTIES.
6.1. AURAPLAYER hereby grants to CUSTOMER a sixty (60) day Product Warranty, as defined below, commencing on the Effective Date and continuing for sixty (60) consecutive days. AURAPLAYER warrants that AURAPLAYER Software Product(s) will perform in accordance with its Documentation in all material respects (the “Product Warranty”).
6.2. CUSTOMER’s sole and exclusive remedy for any breach of the Product Warranty shall be to have AURAPLAYER use commercially reasonable efforts to (i) modify AURAPLAYER Software Product(s) to correct the defect giving rise to such breach, or (ii) provide CUSTOMER with another method of achieving the desired effect within a reasonable period, not to exceed an additional sixty (60) days from AURAPLAYER’s receipt of written notification of such defect from CUSTOMER (“Cure Period”).
6.3. If within said Cure Period, AURAPLAYER is unable to (i) modify the defective Software Product in such a way as to correct said defect, or (ii) provide CUSTOMER with another method of achieving the desired effect, CUSTOMER shall be entitled to terminate the License of AURAPLAYER Software Product(s) by giving written notice thereof to AURAPLAYER within ten (10) days following the end of the Cure Period. In such event, CUSTOMER shall be entitled to a refund of any License Fee paid to CUSTOMER for AURAPLAYER Software Product(s) , together with any unused, prepaid

Annual Fee paid by CUSTOMER to AURAPLAYER for AURAPLAYER Software Product(s) .
6.4. EXCEPT FOR THE PRODUCT WARRANTY AND THE RIGHTS WARRANTY SET FORTH IN SECTION 7.1, AURAPLAYER MAKES AND CUSTOMER RECEIVES FROM AURAPLAYER NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WITH RESPECT TO AURAPLAYER SOFTWARE PRODUCT(S) , DOCUMENTATION, MAINTENANCE SERVICES, THIRD PARTY SOFTWARE OR OTHER SERVICES. AURAPLAYER SPECIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.

 

SECTION 7.0. INFRINGEMENT CLAIMS.
7.1. AURAPLAYER warrants to CUSTOMER that AURAPLAYER has all such rights as are necessary for AURAPLAYER to license AURAPLAYER Software Product(s) to CUSTOMER in the manner set forth in this Agreement (the “Rights Warranty”).
7.2. CUSTOMER agrees to notify AURAPLAYER promptly in writing of any threatened or pending judicial action brought against CUSTOMER alleging that CUSTOMER’s use of AURAPLAYER Software Product(s) infringes a valid United States patent or copyright or constitutes misuse or misappropriation of any United States trade secret (“Infringement Claim”). If CUSTOMER is otherwise in compliance with its obligations under this Agreement, AURAPLAYER shall indemnify and defend such action at its own expense and will pay (a) the legal fees of counsel engaged by AURAPLAYER to defend CUSTOMER, (b) any costs and damages awarded against CUSTOMER in such action, and (c) any amount agreed to be paid by AURAPLAYER in settlement of such action. AURAPLAYER’s foregoing obligations are subject to and conditioned upon AURAPLAYER having the sole control of the defense of such action, all negotiations, and its settlement, and CUSTOMER cooperating fully with AURAPLAYER in such defense.
7.3. In the event that a final injunction is obtained against CUSTOMER’s use of AURAPLAYER Software Product(s) by reason of an Infringement Claim, AURAPLAYER shall (or, at any time prior thereto, AURAPLAYER at its option may), at its own expense, either (a) procure for CUSTOMER the right to continue to use the infringing Software Product, or (b) replace or modify the infringing Software Product to make its use non-infringing while being capable of performing the same function. Notwithstanding the foregoing, if AURAPLAYER, in its sole discretion, determines that neither of said options is reasonably available to it, AURAPLAYER, at its option, may terminate the License of the infringing Software Product, in which event AURAPLAYER shall refund to CUSTOMER (i) a pro rata portion, if any, of the License Fee paid by CUSTOMER for the infringing Software Product, which pro rata portion shall be a fraction, the numerator of which shall be equal to the number of months, if any, remaining from the date the termination becomes effective until the occurrence of the fifth (5th) anniversary of the Effective Date, and the denominator of which shall be equal to sixty (60), and (ii) a pro rata portion of any prepaid Annual Fees for the infringing Software Product, which pro rata portion shall be based on the remaining term of the then-current License Period.
7.4. AURAPLAYER shall have no obligation to CUSTOMER with respect to any Infringement Claim to the extent that such Infringement Claim is based on (a) CUSTOMER’s use of any non-current version of AURAPLAYER Software Product(s) , defined as the most recent release and the release just prior to the most recent release, to the extent that CUSTOMER’s liability for such Infringement Claim would have been avoided by the use of a more recent version of AURAPLAYER Software Product(s) which had been provided by AURAPLAYER to CUSTOMER, or (b) the combination, operation, or use of AURAPLAYER Software Product(s) with software or equipment which was not provided by AURAPLAYER, to the extent that CUSTOMER’s liability for such Infringement Claim would have been avoided in the absence of such combination, operation, or use.
7.5. Except as otherwise specifically set forth in this Section, AURAPLAYER shall have no liability to CUSTOMER with respect to any breach of the Rights Warranty or any alleged or actual infringement, misuse, misappropriation, or other violation of a third party’s Proprietary Rights related to AURAPLAYER Software Product(s) , or any part thereof or CUSTOMER’s use thereof.

 

SECTION 8.0. LIMITATION OF LIABILITY.
8.1. Neither party shall be liable to the other for any delay or failure to perform any of such party’s obligations under this Agreement if such delay or failure arises from any cause or causes beyond the reasonable control of such party.
8.2. EXCEPT AS SPECIFICALLY DESCRIBED BELOW, CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES AND AURAPLAYER’S ENTIRE LIABILITY FOR ANY BREACH OF THIS AGREEMENT BY AURAPLAYER ARE AS SET FORTH IN SECTIONS 6.0 AND 7.0 HEREOF. THE FOREGOING IS NOT HOWEVER INTENDED TO LIMIT THE LIABILITY OF EITHER PARTY ARISING AS A RESULT OF THE NEGLIGENT ACTS OF EMPLOYEES OF SUCH PARTY WHICH ARE UNRELATED TO THE USE OR PERFORMANCE OF AURAPLAYER SOFTWARE PRODUCT(S) , AND WHICH RESULT IN PERSONAL INJURY OR PROPERTY DAMAGE.

8.3 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY’S RIGHTS, REMEDIES OR LIABILITY SHALL BE LIMITED HEREUNDER IN ANY MANNER AS TO ANY BREACH OF THIS AGREEMENT WITH RESPECT TO ANY INTELLECTUAL PROPERTY, PROPRIETARY RIGHTS OR CONFIDENTIAL INFORMATION OF THE OTHER PARTY OR AS TO ANY MISAPPROPRIATION, INTENTIONAL OR OTHERWISE, THEREOF.
8.4 EXCEPTING ONLY AS SPECIFICALLY PROVIDED IN THE IMMEDIATELY PRECEDING PARAGRAPH, IN NO EVENT SHALL AURAPLAYER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE LOSSES OR DAMAGES (INCLUDING LOSSES OR DAMAGES FOR ANY LOST REVENUES, PROFITS, OR DATA), EVEN IF IT HAS BEEN ADVISED OR MADE AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES AND REGARDLESS OF WHETHER THE CLAIM IS BASED ON PERFORMANCE OR NON-PERFORMANCE OF ANY SOFTWARE PRODUCT, BREACH OF CONTRACT OR WARRANTY, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, OR OTHER THEORY OF LIABILITY.

 

SECTION 9.0. TERMINATION.
9.1. AURAPLAYER, at its option, shall be entitled to suspend or terminate, in part or whole, this Agreement upon the occurrence of any material breach or default by CUSTOMER of any of CUSTOMER’s obligations under this Agreement. If CUSTOMER’s breach or default is of a nature which may be cured by CUSTOMER, then AURAPLAYER may exercise its right to terminate this Agreement only if such breach or default continues uncured for a period of thirty (30) days following CUSTOMER’s receipt of written notice of such breach or default.
9.2. CUSTOMER agrees that, in the event of any termination of the Agreement, CUSTOMER shall, within fifteen (15) days from the date CUSTOMER receives written notification of such termination, purge all copies of AURAPLAYER Software Product(s) and Documentation from all computers and storage media on which CUSTOMER has maintained them, destroy all copies of AURAPLAYER Software Product(s) and Documentation provided to or made by CUSTOMER under this Agreement, and promptly certify in writing to AURAPLAYER that the same have been purged and destroyed.
9.3. Termination of this Agreement shall not relieve either party of any payment or other obligation under this Agreement, which was to have been performed by such party prior to the termination. All provisions of this Agreement, which by their nature are intended to survive the termination of this Agreement (including the provisions of Section 1.0 and Sections 4.0 through 11.0) shall survive such termination.

 

SECTION 10.0. GENERAL PROVISIONS.
10.1. This Agreement supersedes in full all prior discussions and agreements between the parties relating to the Software, constitutes the entire agreement between the parties relating to the subject matter hereof, and may be modified or supplemented only by a written document signed by an authorized representative of each party.
10.2. Any demand, notice, or other communication required by this Agreement to be given in writing shall be either (a) hand-delivered to the receiving party, or (b) sent by mail (registered or certified) by official postal services or delivered to a recognized private express common carrier, postage or freight prepaid, addressed to the receiving party. Either party may change its address by giving written notice to the other party of the changed address.
10.3. This Agreement and the Amendment shall be governed by and construed in accordance with the laws of the United States without regard to its conflict of law provisions. CUSTOMER consents to, and agrees that CUSTOMER is subject to, the jurisdiction of the state and federal courts of the United States with respect to any actions for enforcement of or breach of this Agreement brought by AURAPLAYER against CUSTOMER.
10.4. In the event of any litigation between the parties concerning performance or non-performance of either party’s obligations under this Agreement or the Amendment, the prevailing party shall be entitled to be reimbursed by the other party for the costs and expenses (including, but not limited to, reasonable attorneys’ fees) incurred or paid by the prevailing party in such litigation.
10.5. This Agreement shall be binding upon and inure to the benefit of AURAPLAYER and CUSTOMER and their respective legal representatives, successors, and assigns; provided, that CUSTOMER shall not be entitled to assign, sublicense, delegate, or otherwise transfer any of CUSTOMER’s rights or obligations under this Agreement without AURAPLAYER’s prior written consent (which consent shall not be unreasonably withheld or delayed), except in the event of an assignment to a third party who purchases all or substantially all of CUSTOMER’s assets and who agrees to be bound by the provisions of this Agreement.
10.6. The failure of either party to insist upon strict performance of any of the terms and conditions hereunder, or a delay by either party in the exercise of any of its remedies shall not constitute a waiver of such terms.